Tamil Nadu

South Chennai

CC/48/2020

T. N. HARIHARAN and 1 Other - Complainant(s)

Versus

The New India Assurance Cmpany Ltd, Rep. by its Senior Divisional Manager - Opp.Party(s)

M/s P.Rajendrakumar

22 Jun 2023

ORDER

  Date of Complaint Filed:04.03.2020

  Date of Reservation     :12.06.2023

  Date of Order              :22.06.2023

          DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT: TMT. B. JIJAA, M.L.,                                           : PRESIDENT

                    THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                    THIRU. S. NANDAGOPALAN., B.Sc., MBA.,    : MEMBER II

               

CONSUMER COMPLAINT No.48/2020

THURSDAY,THE 22^nd DAY OF JUNE 2023

1.T.N. Hariharan,

   S/o T.V.Nagaraj

 

2.Dr. H. Prabhavathy (Deceased),

   W/o T.N. Hariharan

 

Both residing at

No.4, (New No.7) Gangai Amman Colony,

2^nd Street, Vadapalani,

Chennai 600026.

 

3.Sangeetha,

   D/o T.N.Hariharan

 

4.Venkat H. Ashish

   S/o T.N.Hariharan

 

at No.4 (New No.7) Gangai Ammal Colony,

2^ndStreet, Vadapalani,

Chennai 600026.                                                          ..Complainant.

-Vs-

The New India Assurance Company Limited,

Represented by its Senior Divisional Manager,

Divisional Office at II floor,

Mount Casa Blanca Building,

No.260, Anna Salai,

Chennai 600006.                                                         .. Opposite Party.

* * * * *

Counsel for the Complainant         : M/s. P. Rajendrakumar,

                                                            A. Arunkumar, M. Vani

 

Counsel for Opposite Party   : M/s. S. Dhakshnamoorthy

 

On perusal of records and upon hearing the oral arguments of the counsel for Complainants and the counsel for the Opposite Party this Commission delivered the following:

 

ORDER

Pronounced by Member-I, Thiru. T. R. Sivakumhar., B.A., B.L.,

(i) The Complainant has filed this complaint as against the Opposite Party under section 35 of the Consumer Protection Act, 2019 and prays to pay a sum of Rs.1,50,000/- together with interest at the rate of 12% p.a from the date of complaint till the amount is paid.

I.  The averments of Complaint in brief are as follows:-

1.     The Complainant submitted that the 1^st and 2^ndComplainants are husband and wife and the 2nd Complainant is a medical practitioner. The Opposite Party promoted and offered Family Medical Claim Insurance policy under the name "Good Health Policy". The 1^stComplainant took medi-claim insurance policy with the Opposite Party covering himself, his wife (2^ndComplainant) and his son Venkat H Ashish (4^th Complainant) for a period from 01.03.2018 to 28.02.2019. The 1^st Complainant had paid a sum of Rs.6,450/- as premium to the Opposite Party and the Opposite Party had issued a Good Health Policy Certificate No. 712500/GH/MAR18/01620 covering medi-claim for the said one year period from 01.03.2018 to 28.02.2019. The said insurance policy has been renewed for the current one year period with the same opposite party.

2.     The Complainant had suffered chest pain on 22.10.2018 and therefore had consulted a senior Cardiologist Prof. Dr. V.Chockalingam at Chennai, who had thoroughly examined and diagnosed "coronary artery disease (triple vessel disease)". On 22.10.2018, the 2^nd Complainant had also screened herself through CT Coronary Angiogram through "Medall" diagnostic centre at Chennai. The 2^ndComplainant was prescribed to take certain medicines and advised to take further treatment for the heart ailment and was suggested to undergo "cathangio correlation".

3.     The 2^nd Complainant is in advanced age did not prefer to implant stent or any invasive treatment such as angioplasty or by-pass surgery. Having aware about a treatment called as Enhanced External Counter Pulsation (EECP), a non-invasive kind of treatment for "coronary artery disease", the 2^nd Complainant preferred to undergo the said treatment which is a FDA approved medical treatment. This treatment was intended to improve myocardial blood flow and LV function. Accordingly, the 2^ndComplainant had consulted Cardiologist Dr. S.Ramasamy and took EECP treatment for a period of 35 days from 24.01.2019 to 08.03.2019 at his "Heal Your Heart Hospital situate at Neelankarai, Chennai, EECP is a manner of treatment administered on the patient for one hour every session as a series for 35 days. The Complainants had paid a sum of Rs.85,000/- to said private hospital "Heal your Heart" at Neelankarai to undergo the said EECP treatment.

4.     The 1^st Complainant had lodged a claim for a sum of Rs.85,000/- before the Opposite Party by submitting claim form dated 08.03.2019 in respect of the amount spent for medical treatment availed by the 2^nd Complainant under the Insurance Policy, along with all required medical record and proof of payment of bills. Through online communication dated 26.03.2019 the Opposite Party had rejected and repudiated the claim of the Complainants stating that the EECP treatment procedure undergone by the patient is not considered as proven treatment for the heart ailment and further that the EECP is not listed daycare procedure. Further, the opposite quoted clause 4.4.15 of insurance policy to reject the claim of the Complainants.

5.     The Complainant had by his letter dated 08.04.2019 had objected to the rejection claim by the Opposite Party pointing out the relevant facts and requested to settle the claim. Once again the Opposite Party by their letter dated 16.04.2019 had rejected the claim of the Complainants. The Opposite Party contends that the EECP procedure does not require hospitalization and the 2^nd Complainant was treated daily as outpatient. The Opposite Party had erroneously took a stand that the claim is admissible only for treatment requiring hospitalization for a minimum of 24 hours and that exception is made only for specific procedures and that exception is not applicable for EECP treatment. Further, the Opposite Party quoted clause 4.4.23 of the insurance policy to deny the claim.

6.     The Enhanced External counter pulsation is a non- invasive procedure that can be used to treat certain coronary artery diseases. The intended clinical result of external counter pulsation (EECP) is to increase the heart's oxygen supply. EECP systems consist of inflatable pneumatic-compressive cuffs, valves, and compressors synchronized with an electrocardiograph (ECG). These devices inflate and deflate a series of pneumatic-compressive cuffs enclosing the lower extremities. Treatment is given on a padded table in which three sets of electronically controlled inflation and deflation valves are located. These valves connect to adjustable cuffs that wrap firmly around the patient's calves, lower thighs, and upper thighs including the buttocks. External pressure is applied to the patient through inflation of the cuffs Early diastole pressure is applied sequentially from the lower legs to the lower and upper thighs to displace a volume of blood back to the heart. Then, when the left ventricle contracts and the cuffs deflate, aortic pressure is reduced as the volume of blood upstream of the cuffs fills the lower extremities. Pressure settings can be varied to effect certain blood pressure changes during treatment, with the blood pressure monitored by finger plethysmography. Treatments are usually given in one hour sessions once or twice a day and a full course of treatment is given for 35 days. This treatment improves the blood circulation in the heart and gives comfort.

7.     Following to substantiate that the Opposite Party isbound and liable to settle the claim of the Complainants;

(i)     The Enhanced External Counter Pulsation (EECP) treatment is a valid medical treatment for coronary artery disease" suffered by the 2^nd Complainant and that this kind of treatment is an approved treatment by FDA (USA) and by the American and European Cardiology Society. EECP treatment provided in Government Hospitals at Tamil Nadu by qualified and certified EECP specialist consultants and recommended by Cardiologists The Government of Tamil Nadu does this non- invasive treatment at its Hospitals and offer to reimburse expenses under the Tamil Nadu Chief Ministers Cashless Scheme through STAR Health Insurance entity.

(ii)   The contention of the Opposite Party that the claim cannot be entertained as the hospitalization was not for minimum time of 24 hours is most illogical and against public interest. Due to technological advancement in medical field many medical treatments such as Dialysis, Chemotherapy, Radiotherapy, Eye Surgery, Dental Surgery, Kidney Stone removal, Tonsillectomy etc., are done and discharged by the Hospitals on the very same day. The EECP treatment also a manner of medical treatment to be performed for 35 sessions every day and the patient could move out of the hospital after taking rest for few minutes. The Opposite Party cannot cite this reason to deny the claim of the Complainants.

(iii)    The stand of the Opposite Party quoting clause 4.4.23 of the insurance policy to deny the claim that EECP is covered under the policy is also against the public interest and unlawful. At the outset the copy of the alleged printed terms of the insurance policy are not furnished to the Insured at the time of admitting the insured in the scheme. The alleged terms of the policy are electronically generated and those were not explained or given before the insurance policy is taken. Further, the printed terms which are against the principles of law and equity cannot be used to deny the legitimate claim. It is submitted that the terms of the insurance policy does not specify specific mode of treatment for any ailment and therefore they cannot restrict the mode of treatment to be adopted by the insured, the Complainants herein.

8.     The non-invasive treatment for "coronary artery disease through EECP cannot be excluded from the cover of insurance policy by citing it in exclusion clause. There may be a variety of FDA approved procedures inorder to treat a particular ailment and it is the decision of the medical practitioner and choice of the patient to choose a particular kind of treatment. The Opposite Party cannot in its discretion list certain procedure not covered under the policy, in which case the insurance company cannot prepare exhaustive list excluding method treatments. The fact that the treatment through EECP is approved by Food and Drug Administration and recognized by the Govt. of India for which the Govt. of Tamil Nadu has been offering the same under Tamil Nadu Chief Ministers Cashless Scheme through STAR Health Insurance entity is not denied. Under this circumstances, the repudiation of claim by the Opposite Party amounts to illogical, against public interest and unfair trade practice. The Complainants submit that while other insurance companies entertain and reimburse the expenditures spent for heart ailment through EECP, the denial to settle the claim of the Complainants by the Opposite Party on logical grounds amount to deficiency in service.

9.     The 1^st Complainant had approached the Insurance Ombudsman by a written appeal dated 29.04.2019 and 08.05.2019 enclosing all details and literature about EECP. It is submitted that the Insurance Ombudsman without considering the facts and legal points proceeded to award that the repudiation of the claim by the Opposite Party is in order and it does not require any interference by Award dated 23.10.2019, communicated to the 1 Complainant vide letter dated 24.10.2019. It is submitted that the conclusion of the Ombudsman of the Opposite Party is erroneous and not in accordance with law.

10.    Since the act of the Opposite Party repudiating the genuine claim of the Complainants is erroneous, against the public policy and amounts to unfair trade practice and deficiency in service. By denying to reimburse a legitimate claim by their conduct the Opposite Party has caused irreparable injury and agony to the Complainants. Despite relevant records were shown to establish that the treatment taken for heart ailment is a FDA approved and that other insurance companies are reimbursing the amount spent forthis treatment. Though the mental agony and injury caused to the Complainants cannot be assessed in terms of money, in the interest of justice the Opposite Party must be directed to pay a liquidated sum to compensate the loss along with settlement of money spent for treatment. The Complainants have already submitted the invoice and the proof of payment of Rs.85,000/- spent for EECP treatment.  Hence the complaint.

 

II. Written Version filed by the Opposite Party in brief is as follows:

11.    The Opposite Party submitted that the present complaint is filed on mere conjectures and surmises. They had acted as per the terms and conditions of the policy. Hence, there is no deficiency of service on their part and therefore no case is made out against them under the provisions of the Consumer Protection Act, 1986.

12.    The Opposite Party submitted that the Complainant/claimant under the policy was aged 69 years old. She was covered under Good Health Policy issued vide Master Policy No. 71250034172100000026 in Good Health Policy Certificate No.712500/GH/MAR2018/1620 issued for the period from 01.03.2018 to 28.02.2019 for a Sum insured of Rs.1,00,000/-

13.    During the currency of this Policy period, she was treated for Tripple Vessel Disease calcified vessel from 24.01.2019 to 08.03.2019 at "Heal Your Heart Vaso- Meditech Centre, Chennai. She underwent 35 session of EECP(Enhanced External Counter Pulsation) treatment to improve her exercise tolerance, Myo-cardial blood floor LV function and overall quality of life under day care treatment)

14.    The Complainant has lodged a claim for a sum of Rs.85,000/- for the said treatment. The Claim was repudiated by the Insurer on the ground that Clause No.4.4.15 of the Policy explicitly excludes the treatment for External Counter Pulsation. And the said clause was reproduced;

15.    The Company shall not be liable to make any payment under the Policy, in respect of any expenses whatsoever incurred by any insured/insured person in connection with or in respect of the following

4.4.15: All treatments like Age Related Macular Degeneration(ARMD) and/or Chorodal Neo Vascular Membrane done by administration of Lucentis/Avastin/Macugen and other related drugs as intravitreal injection, Rotational Field Quantum Magnetic Resonance (RFQMR), External Counter Pulsation (ECP), Hyperberic Oxygen Therapy and unproven experimental treatment.

16.    It is further submitted that the Complaint aggrieved by the repudiation of the claim has approached the Insurance Ombudsman. And said Forum has disallowed the Complaint made by the Complainant herein. Hence the findings of Insurance Ombudsman would fortify the fact that the Insurer acted as per the terms and conditions of the Policy.

17.    Hence, not satisfied with the findings of the Insurance Ombudsman, the Complainant has preferred this present complaint.

18.    TheComplainants son have taken a Good health policy for the period from 01.03.2018 to 28.02.2019.

19.    They have preferred the said treatment on their own volition. The Complainants are well educated persons and are well aware of the scope of coverage of the Policy availed by them and hence they know very well that the said procedure of EECP treatment is explicitly excluded under the Policy, and inspite of the same, they have proceeded with the sad treatment.

20.    They have repudiated the claim since Clause 4.4.15 of the Policy terms explicitly excludes the External counter pulsation treatment. Hence, the Opposite Party acted well within the terms and conditions of the Policy.

21.    TheOpposite Party submitted that the Complainant gives a detailed explanation of the nature of treatment done through EECP which is not relevant since the said EECP procedure by itself is excluded under the policy. It is further submitted that under contract of Insurance, only those claims that are covered under the Policy alone will be payable.

22.    TheOpposite Party submitted that firstly, that the Complainants have wrongly construed the scope of the policy either purposefully or unintentionally. The scope of coverage varies for each type of policy and hence drawing an analogy with a policy issued by Star Health Insurance for Tamilnadu Chief Minister Cashless Scheme with this policy, is wholly misleading.       Secondly, the policy explicitly provides a list of Day care treatments (where there is no hospitalization and the period of treatment underdone is for less than 24 hours) that are covered under the Policy. Since this treatment of EECP is specifically excluded under Clause 4.4.15, the question of considering this as Day care treatment does not arise. The clause 2.10 of Day care Treatments specifically lists out the Day care treatments payable under the Policy.Thirdly it is submitted that though the contents of Clause 4.4.15 is correctly quoted for repudiation of the Claim, the Opposite Party has inadvertently stated the Clause Number as 4.4.23 instead of Clause 4.4.15 The same has been observed by the Insurance Ombudsman in its order and hence it has been clearly clarified to the Complainant.

23.    At the time of issuance of Policy Certificate, the entire terms and conditions are enclosed along with the Policy. It is also specifically stated on the face of the policy Certificate itself that the "Terms and conditions forming part of the policy may be downloaded from the website and the weblink is also provided" and hence the Complainants are falsely claiming ignorance and making a false statement that they have not received the policy's terms and conditions.

24.    Further submitted that firstly the Complainants are not a layman and secondly, the policy was issued for the period from 01.03.2018 to 28.02.2019 and that they lodged the claim only on 08.03.2019 and during the intervening period of one year, the claimants had sufficient time to contact the Insurer and could have attempted to approach the Insurer to collect the hard copy of the terms and conditions of the policy, had they genuinely not received it. Hence this prima facie shows that they have come with this narrative as the terms and conditions does not favour their claim. It is further submitted that the terms and conditions list out the day care treatments which are payable under the policy. Hence what is explicitly excluded under the Policy cannot be claimed by the Complainants herein.

25.    It is submitted that there are various types of Health Insurance Policies floated by the Insurance companies in India and each Policy has its own unique features, scope of cover and exclusions and one type of policy cannot be compared and correlated with another and also it the policy holder who chooses the Insurer and the type of health policy required. Hence comparing the Insurance policy issued by one Insurance company with another is wholly misconceived and misleading. Further it is submitted all the insurance policies are duly approved by the Statutory body namely Insurance Regulatory and Development Authority of India (IRDAI) It is pertinent to state that IRDAI approves after considering the Scope of cover, Policy rates and the terms and conditions of the policy.

26.    The Complainant approached the Insurance Ombudsman and the Insurance Ombudsman in its speaking order had rightly held that the repudiation of claim was in order and the claim made by the Complainant was disallowed.

27.    Since the policy specifically excluded the treatment undergone by the Complainant, the Insurer was unable to consider their claim. Further, it is submitted that the document produced as FDA approved is not issued by the Government of India. Nevertheless, even if the EECP is approved by Government of India, it would not make the Insurer automatically liable. Contract of Insurance is the basis for the Liability of the Insurer. When the Insurer acted within the terms and conditions agreed upon the said insurance contract, the Complainants cannot impute allegations against the Insurer.

28.    Hence it is humbly submitted that the complaint is not maintainable and the Complainant is not entitled to any reliefs prayed for as against this Opposite Party as there is no deficiency of service on the part of the Opposite Party and consequently the Complainants are not entitled for any compensation sought under the Complaint, much less the sum of Rs.85,000/- towards EECP treatment, Rs.50,000/- for damages and mental agony, and Rs.15,000/- for cost of proceedings, along with 12% interest. Hence prayed to dismiss the complaint.

III. The Complainant has filed his proof affidavit,  in support of his claim in the complaint and has filed 16 documents which are marked as Ex.A1 to A16. The Opposite Party had submitted its proof affidavit. On the side of Opposite Party Ex.B-1 alone was marked. Written arguments  of Complainant and Opposite Party was filed.

IV. Points for Consideration:-

 

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

POINT NO. 1 :-

29.    It is an undisputed fact that the 1^st Complainant took medi-claim insurance policy with the Opposite Party covering himself, his wife (Deceased 2^nd Complainant) and his son Venkat H Ashish (4^th Complainant) for a period from 01.03.2018 to 28.02.2019 and had paid a sum of Rs.6,450/- as premium to the Opposite Party and the Opposite Party had issued a Good Health Policy Certificate No. 712500/GH/MAR18/01620 covering medi-claim for one year period from 01.03.2018 to 28.02.2019. it is also not in dispute that the said Insurance Policy was renewed for further one year period by the Opposite Party.

30.    The contentions of the Complainants are that the 2^nd Complainant had suffered chest pain on 22.10.2018, she was diagnosed "coronary artery disease (triple vessel disease)" on 22.10.2018 and she was prescribed to take certain medicines and advised to take further treatment for the heart ailment and was suggested to undergo "cathangio correlation".

31.    As the 2^nd Complainant is in advanced age did not prefer to implant stent or any invasive treatment such as angioplasty or by-pass surgery. Having aware about a treatment called as Enhanced External Counter Pulsation (EECP), a non-invasive kind of treatment for "coronary artery disease", the 2^nd Complainant preferred to undergo the said treatment which is a FDA approved medical treatment. This treatment was intended to improve myocardial blood flow and LV function. Accordingly, the 2^nd Complainant had consulted Cardiologist Dr.S.Ramasamy and took EECP treatment for a period of 35 days from 24.01.2019 to 08.03.2019 at his "Heal Your Heart” Hospital situate at Neelankarai, Chennai. EECP is a manner of treatment administered on the patient for one hour every session as a series for 35 days. The Complainants had paid a sum of Rs.85,000/- to said private hospital "Heal your Heart" at Neelankarai to undergo the said EECP treatment.

32.    Thereafter the 1^st Complainant had lodged a claim for a sum of Rs.85,000/- before the Opposite Party by submitting claim form dated 08.03.2019 along with all required medical record and proof of payment of bills in respect of the amount spent for medical treatment availed by the 2^nd Complainant under the Insurance Policy. Through online communication dated 26.03.2019 the Opposite Party had rejected and repudiated the claim of the Complainants stating that the EECP treatment procedure undergone by the patient is not considered as proven treatment for the heart ailment and further that the EECP is not listed as daycare procedure. Further, the Opposite Party quoted clause 4.4.15 of insurance policy to reject the claim of the Complainants.

33.    The 1^st Complainant by his letter dated 08.04.2019 had objected to the rejection claim by the Opposite Party pointing out the relevant facts and requested to settle the claim. Once again the Opposite Party by their letter dated 16.04.2019 had rejected the claim of the Complainants. The Opposite Party contends that the EECP procedure does not require hospitalization and the 2^nd Complainant was treated daily as outpatient. The Opposite Party had erroneously took a stand that the claim is admissible only for treatment requiring hospitalization for a minimum of 24 hours and that exception is made only for specific procedures and that exception is not applicable for EECP treatment. Further, the Opposite Party quoted clause 4.4.23 of the insurance policy to deny the claim.

34.    The Complainants had contended explaining the procedures and benefits of the Enhanced External counter pulsation, as the same is a non- invasive procedure that can be used to treat certain coronary artery diseases. The intended clinical result of external counter pulsation (EECP) is to increase the heart's oxygen supply. EECP systems consist of inflatable pneumatic-compressive cuffs, valves, and compressors synchronized with an electrocardiograph (ECG). These devices inflate and deflate a series of pneumatic-compressive cuffs enclosing the lower extremities. Treatment is given on a padded table in which three sets of electronically controlled inflation and deflation valves are located. These valves connect to adjustable cuffs that wrap firmly around the patient's calves, lower thighs, and upper thighs including the buttocks. External pressure is applied to the patient through inflation of the cuffs Early diastole pressure is applied sequentially from the lower legs to the lower and upper thighs to displace a volume of blood back to the heart. Then, when the left ventricle contracts and the cuffs deflate, aortic pressure is reduced as the volume of blood upstream of the cuffs fills the lower extremities. Pressure settings can be varied to effect certain blood pressure changes during treatment, with the blood pressure monitored by finger plethysmography. Treatments are usually given in one hour sessions once or twice a day and a full course of treatment is given for 35 days. This treatment improves the blood circulation in the heart and gives comfort.

35.    Further contended that as the Enhanced External Counter Pulsation (EECP) treatment is a valid medical treatment for “coronary artery disease" suffered by the 2^nd Complainant and that this kind of treatment is an approved treatment by FDA (USA) and by the American and European Cardiology Society. EECP treatment provided in Government Hospitals at Tamil Nadu by qualified and certified EECP specialist consultants and recommended by Cardiologists. The Government of Tamil Nadu does this non- invasive treatment at its Hospitals and offer to reimburse expenses under the Tamil Nadu Chief Ministers Cashless Scheme through STAR Health Insurance entity.

36.    Further submitted that the contention of the Opposite Party that the claim cannot be entertained as the hospitalization was not for minimum time of 24 hours is most illogical and against public interest. Due to technological advancement in medical field many medical treatments such as Dialysis, Chemotherapy, Radiotherapy, Eye Surgery, Dental Surgery, Kidney Stone removal, Tonsillectomy etc., are done and discharged by the Hospitals on the very same day. The EECP treatment also a manner of medical treatment to be performed for 35 sessions every day and the patient could move out of the hospital after taking rest for few minutes. The Opposite Party cannot cite this reason to deny the claim of the Complainants.

37.    Further contended that the stand of the Opposite Party quoting clause 4.4.23 of the insurance policy to deny the claim that EECP is covered under the policy is also against the public interest and unlawful. And contended that the outset the copy of the alleged printed terms of the insurance policy are not furnished to the Insured at the time of admitting the insured in the scheme. The alleged terms of the policy are electronically generated and those were not explained or given before the insurance policy is taken. Further, the printed terms which are against the principles of law and equity cannot be used to deny the legitimate claim. Further contended that the terms of the insurance policy does not specify specific mode of treatment for any ailment and therefore they cannot restrict the mode of treatment to be adopted by the insured, the Complainants herein. Hence the Opposite Party is bound and liable to settle the claim of the Complainants.

38.    The 1^st Complainant had approached the Insurance Ombudsman by a written appeal dated 29.04.2019 and 08.05.2019 enclosing all details and literature about EECP and the Insurance Ombudsman without considering the facts and legal points proceeded to award that the repudiation of the claim by the Opposite Party is in order and it does not require any interference by Award dated 23.10.2019, communicated to the 1 Complainant vide letter dated 24.10.2019. It is submitted that the conclusion of the Ombudsman of the Opposite Party is erroneous and not in accordance with law.

39.    As the act of the Opposite Party repudiating the genuine claim of the Complainants is erroneous, against the public policy and amounts to unfair trade practice and deficiency in service. By denying to reimburse a legitimate claim by their conduct the Opposite Party has caused irreparable injury and agony to the Complainants, despite relevant records were shown to establish that the treatment taken for heart ailment is a FDA approved and that other insurance companies are reimbursing the amount spent forthis treatment. Though the mental agony and injury caused to the Complainants cannot be assessed in terms of money, in the interest of justice the Opposite Party must be directed to pay a liquidated sum to compensate the loss along with settlement of money spent for treatment.

40.      The contentions of the Opposite Party are that the present complaint is filed on mere conjectures and surmises. They had acted as per the terms and conditions of the policy. Hence, there is no deficiency of service on their part and therefore no case is made out against them under the provisions of the Consumer Protection Act, 1986.

41.    The Complainant/claimant under the policy was aged 69 years old. She was covered under Good Health Policy issued vide Master Policy No. 71250034172100000026 in Good Health Policy Certificate No.712500/GH/MAR2018/1620 issued for the period from 01.03.2018 to 28.02.2019 for a Sum insured of Rs.1,00,000/-

42.    During the currency of this Policy period, she was treated for Tripple Vessel Disease calcified vessel from 24.01.2019 to 08.03.2019 at Heal Your Heart Vaso- Meditech Centre, Chennai. She underwent 35 session of EECP(Enhanced External Counter Pulsation) treatment to improve her exercise tolerance, Myo-cardial blood floor LV function and overall quality of life under day care treatment).

43.    The Complainant has lodged a claim for a sum of Rs.85,000/- for the said treatment. The Claim was repudiated by the Insurer on the ground that Clause No.4.4.15 of the Policy explicitly excludes the treatment for External Counter Pulsation, as  “The Company shall not be liable to make any payment under the Policy, in respect of any expenses whatsoever incurred by any insured/insured person in connection with or in respect of the following4.4.15: All treatments like Age Related Macular Degeneration(ARMD) and/or Chorodal Neo Vascular Membrane done by administration of Lucentis/Avastin/Macugen and other related drugs as intravitreal injection, Rotational Field Quantum Magnetic Resonance (RFQMR), External Counter Pulsation (ECP), Hyperberic Oxygen Therapy and unproven experimental treatment.

44.    The Complainant aggrieved by the repudiation of the claim has approached the Insurance Ombudsman. And said Forum has disallowed the Complaint made by the Complainant. Hence the findings of Insurance Ombudsman would fortify the fact that the Insurer acted as per the terms and conditions of the Policy. Having not satisfied with the findings of the Insurance Ombudsman, the Complainant has preferred this present complaint.

45.    The Complainants son have taken a Good health policy for the period from 01.03.2018 to 28.02.2019.They have preferred the said treatment on their own volition. The Complainants are well educated persons and are well aware of the scope of coverage of the Policy availed by them and hence they know very well that the said procedure of EECP treatment is explicitly excluded under the Policy, and inspite of the same, they have proceeded with the sad treatment. They have repudiated the claim since Clause 4.4.15 of the Policy terms explicitly excludes the External counter pulsation treatment. Hence, the Opposite Party acted well within the terms and conditions of the Policy.

46.    The Opposite Party contended that though the Complainant has given a detailed explanation of the nature of treatment done through EECP which is not relevant since the said EECP procedure by itself is excluded under the policy. It is further contended that under contract of Insurance, only those claims that are covered under the Policy alone would be payable.

47.    The Opposite Party contended that the Complainants have wrongly construed the scope of the policy either purposefully or unintentionally. The scope of coverage varies for each type of policy and hence drawing an analogy with a policy issued by Star Health Insurance for TamilNadu Chief Minister Cashless Scheme with this policy, is wholly misleading.

48.    Further contended that the policy explicitly provides a list of Day care treatments (where there is no hospitalization and the period of treatment underdone is for less than 24 hours) that are covered under the Policy. Since this treatment of EECP is specifically excluded under Clause 4.4.15, the question of considering this as Day care treatment does not arise. The clause 2.10 of Day care Treatments specifically lists out the Day care treatments payable under the Policy.

49.    Further contended that though the contents of Clause 4.4.15 is correctly quoted for repudiation of the Claim, the Opposite Party has inadvertently stated the Clause Number as 4.4.23 instead of Clause 4.4.15 The same has been observed by the Insurance Ombudsman in its order and hence it has been clearly clarified to the Complainant.

50.    Further contended that at the time of issuance of Policy Certificate, the entire terms and conditions are enclosed along with the Policy and it was specifically stated on the face of the policy Certificate that the Terms and conditions forming part of the policy may be downloaded from the website and the weblink is also provided and hence the Complainants are falsely claiming ignorance and making a false statement that they have not received the policy's terms and conditions.

51.    Further contended that the Complainants are not a layman and the policy was issued for the period from 01.03.2018 to 28.02.2019 and that they lodged the claim only on 08.03.2019 and during the intervening period of one year, the claimants had sufficient time to contact the Insurer and could have attempted to approach the Insurer to collect the hard copy of the terms and conditions of the policy, had they genuinely not received it. Hence this prima facie shows that they have come with this narrative as the terms and conditions does not favour their claim. It is further contended that the terms and conditions list out the day care treatments which are payable under the policy. Hence what is explicitly excluded under the Policy cannot be claimed by the Complainants herein.

52.    Further contended that there are various types of Health Insurance Policies floated by the Insurance companies in India and each Policy has its own unique features, scope of cover and exclusions and one type of policy cannot be compared and correlated with another and also it the policy holder who chooses the Insurer and the type of health policy required. Hence comparing the Insurance policy issued by one Insurance company with another is wholly misconceived and misleading. Further contended that all the insurance policies are duly approved by the Statutory body namely Insurance Regulatory and Development Authority of India (IRDAI). It is pertinent to mention that IRDAI approves after considering the Scope of cover, Policy rates and the terms and conditions of the policy.

53.    Further contended that as the policy specifically excluded the treatment undergone by the Complainant, the Insurer was unable to consider their claim. Though the document produced as FDA approved is not issued by the Government of India, nevertheless, even if the EECP is approved by Government of India, it would not make the Insurer automatically liable. As the Contract of Insurance is the basis for the Liability of the Insurer and when the Insurer acted within the terms and conditions agreed upon the said insurance contract, the Complainants cannot impute allegations against the Insurer. Hence the complaint is not maintainable and the Complainant is not entitled to any reliefs prayed for as against this Opposite Party as there is no deficiency of service on the part of the Opposite Party.

54.    On discussions made above and on perusal of records, it is clear from Ex.A-8 the claim form dated 08.03.2019 submitted by the Complainant to the Opposite Party for a sum of Rs.85,000/- for the treatment taken at Heal Your Heart Hospital. The Repudiation Letter dated 26.03.2019 sent by the Opposite Party to the 1^st Complainant, Ex.A-9, wherein the reason for rejecting the claim made by the Complainant was mentioned as “ As per claim documents it is observed that the patient has undergone EECP procedure which is not as proven treatment for ailment, further the ECP is not a listed daycare procedure hence the claim has been repudiated, under clause 4.4.15(please refer to policy for details)”. On receipt of Ex.A-9, the 1^st Complainant had sent a Reply Letter dated 08.04.2019, Ex.A-10, seeking explanation from the Opposite Party about mentioning the EECP treatment as unproven treatment, and intimated that failing proper response would chose legal course for remedy, for which the Opposite Party had sent a Rejoinder Letter dated 16.04.2019 to the 1^st Complainant and had explained that the claim of the Complainant was referred to their Health Department for their Opinion and reconsideration, whereas the said Department had observed the clauses mentioned in the list of day care procedures in their policy and EECP is an exclusion as per policy clause 4.4.23 in Mediclaim Policy, hence the claim is not payable. Hence informed that their Competent Authority has not agreed for a review of his claim and if not satisfied with their reply to approach the Office of Ombudsman for his grievance, furnishing their Ombudsman address. Ex.A-12 is the grievance addressed by the 1^st Complainant to Insurance Ombudsman and Ex.A-16 is the Award dated 23.10.2019 passed by the Insurance Ombudsman confirming the repudiation of the claim by the Insurer is in order.

55.    It is to be noted that the main contentions of the Complainant are that as the Enhanced External Counter Pulsation (EECP) treatment is a valid medical treatment for coronary artery disease and that this kind of treatment is an approved treatment by FDA (USA) and by the American and European Cardiology Society. And further the EECP treatments are provided in Government Hospitals at Tamil Nadu by qualified and certified EECP specialist consultants and recommended by Cardiologists. The Government of Tamil Nadu does this non- invasive treatment at its Hospitals and offer to reimburse expenses under the Tamil Nadu Chief Ministers Cashless Scheme through STAR Health Insurance entity. Further that the claim cannot be entertained as the hospitalization was not for minimum time of 24 hours is most illogical and against public interest. Due to technological advancement in medical field many medical treatments such as Dialysis, Chemotherapy, Radiotherapy, Eye Surgery, Dental Surgery, Kidney Stone removal, Tonsillectomy etc., are done and discharged by the Hospitals on the very same day. The EECP treatment also a manner of medical treatment to be performed for 35 sessions every day and the patient could move out of the hospital after taking rest for few minutes. Hence the Opposite Party cannot cite this reason to deny the claim of the Complainants. Further the stand of the Opposite Party quoting clause 4.4.23 of the insurance policy to deny the claim that EECP is covered under the policy is also against the public interest and unlawful. It is to be noted that when the treatment of External Counter Pulsation (ECP) is specifically excluded under Clause 4.4.15 of the Insurance Policy as seen in Ex.B-1 and further the treatment of EECP taken by the 2^nd Complainant does not cover under Specific Day care Treatment as well as under the Additional Day Care Treatments with a sub limit of 20% of the sum insured. Hence the said contentions of the Complainant are not legally sustainable, as having accepted the Policy and thereafter claiming the terms and conditions are against public interest and unlawful cannot be permitted. And in this regard the contention of the Opposite Party that only on approval by the Insurance Regulatory Development Authority of India the Policy has been floated by the Opposite Party is acceptable. And further it is settled law that the terms and conditions of the Policy shall govern the contract between the parties binds the Insurer and the Insured.

56.    Further the contention of the Complainants that the copy of the alleged printed terms of the insurance policy are not furnished to the Insured at the time of admitting the insured in the scheme, from Ex.A-1 Policy Certificate it has been clearly mentioned that the benefits in respect of the within mentioned insured persons are subject to definitions, terms, conditions and exclusions under the respective policies with Website address of the Opposite Party and in Ex.B-1 it has been clearly mentioned that the terms and conditions forming part of the Policy may be downloaded from the website of the Opposite Party, further it is to be noted that the 1^st Complainant under Ex.A-10 had sought for explanation regarding the rejection on the ground of terming the EECP treatment as unproven treatment by the Opposite Party, had not sought for the terms and conditions of the Policy. Hence the Contention of the Complainant that he was not furnished with the terms and conditions of the Policy is not legally sustainable.

57.    Complainants relied following order /Judgements in support of their claim:

i)  Order passed by Hon’ble State Consumer Disputes Redressal Commission, Andhra Pradesh on 06.01.2012 in Achanta Gopinath Vs. United India Insurance Company, though the Hon’ble State Consumer Disputes Redresal Commission, Andhra Pradesh had discussed about the treatment of EECP is technologically advanced treatment and the same cannot be questioned by the Insurance company, the said order was passed stating that no hospitalization is required for 24 hours. In our view it is settled law that terms of policy shall govern the contract between the parties and the parties have to abide by the terms and conditions of the policy which is observed by Hon’ble Supreme Court now and then while dealing with contract of Insurance. Hence the above order relied by the Complainant could not be taken into consideration.

(ii)    Judgment of our Hon’ble High Court, Madras in W.P No.22222 of 2012 passed on 28.08.2014 in M.D.Venugopall Vs. The Director General of Police, it was the case where the treatment of EECP, the non-invasive treatment is approved by the Government of Tamil Nadu in G.O No.174, the benefit was denied, having approved by the Government in G.O No.174 and it was observed that it was not the case of the respondent that the reimbursement could not given under the Tamil Nadu Police Benevolent Fund for non invasive treatment, when that is so, and observed that the right of the patient to choose the treatment should be respected.

        From the above judgement, the Hon’ble High Court was compelled to take a view that such denial is in violation of Article 21 of the Constitution of India since the Government of Tamil Nadu has approved the non invasive treatment, EECP in G.O No.174, inspite of the same the reimbursement for availing the said treatment of EECP was denied. In the instance case the wordings used in clause 4.4.15 given as a reason for repudiating the claim of the Complainant is to be noted, which is reproduced as follows: 4.4.15:  All treatments like Age related Macular Degeneration (ARMD) AND OR Choroidal NCO Vascular Membrane done by administration of Lucentis/Avastin/ Macugen and other related drugs as intravitreal injection, Rotational Field Quantum Magnetic Resonance (RFQMR), External Counter Pulsation (ECP), Hyperberic Oxygen Therapy and unproven experimental treatment, the above definition falls under PERMANENT  EXCLUSIONS defined in clause 4.4 of the terms and conditions of the policy, though the Opposite Party had mentioned that EECP treatment has unproven treatment in their letter of repudiation, Ex.A-9, the exclusion clause clearly excluded treatment of External Counter Pulsation (ECP) and nowhere in the said definition it is mentioned that the ECP treatment as unproven treatment, apart from the Exclusions of treatments listed in clause 4.4.15, a wording is used separately next to Hyperberic Oxygen Therapy and UNPROVEN EXPERIMENTAL TREATMENT.

        Hence as discussed earlier that which is observed by Hon’ble Supreme Court now and then while dealing with contract of Insurance, the above Judgement does not apply to the instant case.

        The Opposite Party had relied upon Judgement of our Hon’ble Supreme Court in Civil Appeal No.6277 of 2004 decided on 24.09.2004 in United India Insurance Co Ltd Vs. Harchand Rai Chandan Lal, wherein it was observed that it is settled law that the terms of Policy shall govern the contract between the parties and the parties have to abide by the terms and conditions of the policy.

58.    Therefore this Commission is of the considered view that the repudiation of claim of the Complainant was made following the terms and conditions of the subject Insurance Policy, hence there is no deficiency of service on the part of the Opposite Party. Accordingly Point No.1 is answered.

POINTS NO 2 & 3

59.    As discussed and decided Point No.1 against the Complainant, the Complainant is not entitled for the reliefs claimed in the complaint and hence not entitled for any other relief/s. Accordingly Point Nos.2 and 3 are answered.

In the result, the complaint is dismissed. No costs.

 

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 22^{nd 0}of  June 2023.

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

      MEMBER II                                MEMBER I                        PRESIDENT

 

 

List of documents filed on the side of the Complainant:-

Ex.A1	01.03.2018	Insurance Policy Certificate issued by the Opposite Party in favour of the Complainants for the period 01.03.2018 to 28.02.2019
Ex.A2	22.10.2018	CT Coronary Angiogram Report issued by “Medal” of the 2ndComplainant, with Doctor’s Prescription
Ex.A3	24.10.2018	Medical Lab Test Reports issued by “Medall” of the 2ndComplainant
Ex.A4	04.02.2019	Treatment invoice for EECP issued by Hospital Heal your Heart
Ex.A5	04.02.2019 to 06.03.2019	Payment receipts issued by the Hospital acknowledging the treatment invoice amount of Rs.85,000/-
Ex.A6	04.03.2019	Prescription sheet for Medical Test issued by the Hospital
Ex.A7	08.03.2019	Discharge summary of the 2ndComplainant issued by the Hospital treated, “Heal your Heart”
Ex.A8	08.03.2019	Claim Form submitted by the 1stComplainant to the Opposite Party
Ex.A9	26.03.2019	Letter of Opposite Party rejecting the claim of the 1stComplainant
Ex.A10	08.04.2019	Letter of the 1stComplainant to the Opposite Party demanding to pay and settle the claim
Ex.A11	16.04.2019	Letter of Opposite Party to the 1stComplainant again communicating the rejection of claim
Ex.A12	29.04.2019	Letter of Appeal by the 1stComplainant to the Insurance Ombudsman of the Opposite Party
Ex.A13	30.04.2019	Letter from insurance Ombudsman to the 1stComplainant to submit further documents
Ex.A14	08.05.2019	Repy by 1stComplainant to the Insurance Ombudsman
Ex.A15	24.10.2019	Letter from Insurance Ombudsman to the 1stComplainant enclosing his award rejecting the appeal
Ex.A16		Circular approving the EECP treatment by FDA USA

 

List of documents filed on the side of the Opposite Party:-

 

Ex.B1

Policy and its terms and conditions

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                    B.JIJAA

      MEMBER II                                MEMBER I                        PRESIDENT