Per Shri P.N. Kashalkar – Hon’ble Presiding Judicial Member:

(1)                This consumer complaint is filed by the Complainant against the Opponent No.1 – The New India Assurance Co. Ltd. U also against Heritage Healthcare Pvt. Ltd. – Opponent No.2.  Opponent No.2 processes the claim lodged with Opponent No.1 and hence, Opponent No.2 has been added as a party by the Complainant.  According to Complainant she had taken Overseas Mediclaim Policy bearing No.2010/111800/34/10/45/00001558 from Opponent NO.1 on 26^th April, 2010 under the category of ‘Corporate Frequent Traveller’.  The maximum cover available under the Mediclaim Policy in case of illness was USD 1,00,000/-.  The policy was in force from 26^th April, 2010 to 25^th April, 2011.  The Insurance was valid from the first day of insurance or date and time from departure out of India, whichever is later till the last day of the policy schedule or till the insured returned to India, whichever is earlier.  Complainant travelled with her husband Mr.Sudhir Thackersey to Zurich, Switzerland on 27^th April, 2010.  The Complainant commenced journey from India on 27^th April, 2010 and reached on the same day to Zurich.  On 9^th May, 2010 she suffered from constant chest and upper abdominal pain.  So, immediately she was admitted to Klinik Hirslanden at Zurich for treatment.  She was treated by Dr.Med.A. Mueller, Senior Doctor of the Gastroenterologie department.  She was being monitored by Dr.Henry Perschak, MD, Head of department of General Internal Medicine and Dr.Stefano Tresch, specialist from the General Internal Medicine department.  She was admitted in intensive care unit and on 10^th May, 2010 she was treated for dialysis.  Complainant’s husband immediately notified about her hospitalization to ‘Coris Internal’, who provides emergency assistance and claims administration services in Continental Europe, U.K. & Ireland, Africa etc.  Thereafter, there was some communication between the said Coris and Opponent No.2.  There was some exchange of e-mails between the parties.  On 11^th May, 2010 Dr.Med. A. Muller gave his report.  In the report Dr.Muller stated that after examining the Complainant, the initial diagnosis and the CT scan revealed a partial thrombosis of the portal vein and an idiopathic pancreatitis and in order to cure the same, the Complainant received anticoagulation by Liquemin and was put on i.v. infusion.  The Complainant also developed liver failure, however, the reason for liver failure was not known, as there were no signs of any obstruction in the ductus choledochus or any stones in the gallbladder.  On 10^th May, 2010 the kidney did not function properly and dialysis was started.  The Complainant thereafter underwent several treatments and tests at the said clinic and for about 19 days she was continuously under observation of senior doctors attached to various departments.  She was discharged from the said clinic on 28^th May, 2010.  She was asked to stay at Zurich hotel for four days and come back again on 1^st June, 2010 for consultation.  She was also orally informed that Complainant should be accompanied by Doctor while travelling back to India.  Complainant’s daughter accordingly contacted Dr.Hari Chablani to come to Zurich to accompany the Complainant during her return journey to India.  Dr.Chablani arrived at Zurich on 30^th May, 2010.  On 1^st June, 2010, she again went to said clinic as advised and Dr.Stefano Tresch gave medical report and discharge summary to the Complainant.  Dr.Tresch, MD of the said clinic also gave a certificate dated 1^st June, 2010 recommending that the Complainant be accompanied by a doctor while travelling back home.  Accordingly on 2^nd June, 2010 the Complainant accompanied by her husband, her daughter and Dr.Chablani came back to Mumbai.  She submitted requisite claim form to the Opponent No.2 with required information and documents duly annexed to the claim form for reimbursement of the claim under overseas mediclaim policy.  Her claim was for CHF 98102.70 plus `2,18,519/-.  However, Opponents did not immediately sanction the claim.  Some documents were asked.  Husband of the Complainant gave some documents to Opponent No.2 on 13<sup>th</sup> August, 2010.  One Mr.Kara was following up with Opponent No.2 for processing the claim but nothing happened in August and September, 2010.  Ultimately on 20<sup>th</sup> October, 2010 Complainant received letter from the Opponent No.2 that during her trip abroad, she suffered from the complaint of abdominal pain and that the diagnosis was ‘Alcoholic Pancreatitis’ and Liver Cirrhosis’.  Opponent No.2 further informed that the policy carries specific exclusion of  all medical expenses incurred directly due to alcoholism and therefore, medical panel Doctors opined that Complainant was treated for alcoholic pancreatitis and liver cirrhosis and as such said ailments were excluded and therefore, claim was not payable.  Pursuant to this letter the Complainant had again gone to Zurich along with her husband on 28<sup>th</sup> October, 2010 to meet Doctors who treated her at Klinik Hirslanden for further check-up and to seek comments on letter dated 20<sup>th</sup> October, 2010 sent by Opponent NO.2.  Complainant met Dr.Henry Perschak, MD, head of department of General Internal Medicine and Dr.Med. a. Muller of Gastroenterologie department of the said clinic.  Those were the Doctors who were treating Complainant during her hospitalization in the said clinic from 9<sup>th</sup> May, 2010 to 28<sup>th</sup> May, 2010.  After perusal of papers and letter dated 20<sup>th</sup> October, 2010 Dr.Perschak informed the Complainant that the assessment that the pancreatitis being of alcoholic origin was completely false and during the diagnosis, they had been able to exclude both the common causes of pancreatitis namely, biliary and alcoholic.  Dr.Perschak confirmed that the final diagnosis was idiopathic pancreatitis and he ruled out any possibility of liver cirrhosis and said that such assessment was completely out of the blue.  Dr.Perschak also stated that the denial of coverage was based on false judgement, insufficient medical knowledge and non-existent data.  Dr.Perschak gave a certificate dated 4<sup>th</sup> November, 2010 to the Complainant.  On the same day Complainant was examined by Dr.Med.A Muller.  Dr.Muller confirmed that the Complainant did not have liver cirrhosis and also gave a letter to that effect.  The Complainant therefore wrote another letter dated 1<sup>st</sup> December, 2010 to Opponent NO.2 and informed Opponent No.2 that she was required to do further check-up and she had to go to Zurich on 28<sup>th</sup> October, 2010 and she was there till 7<sup>th</sup> November, 2010 and she forwarded certificates dated 4<sup>th</sup> November, 2010 of Dr.Perschak, MD and of Dr.Med.A. Muller.  The Complainant therefore, informed them that rejection of claim was completely baseless and erroneous and they were further liable to pay travelling expenses to her of `3,24,310/- and medical check-up fees of both the Doctors and CHF 726.20 in addition to the amount already claimed at the time of presentation of the claim.  However, the Opponents did not reconsider the case and failed to pay the amount to the Coplainant and therefore, she filed consumer complaint claiming amount of CHF 98,827.90 plus IN` 5,42,829  with interest @18% per annum from the date of filing of the complaint.  She also claimed `3,00,000/- towards compensation for mental agony and harassment caused to her.  She filed her own affidavit in support of her claim and various documents produced as Exhibits.

(2)                Opponent no.1 filed written version and contested the complaint.  According to Opponent No.1 the entire complaint is fat on description of the incident but thin on the legal point except that there are repeated pleadings of the Complainant that she had not been paid any amount for mediclaim policy she had purchased under Overseas Mediclaim Policy.  It is pleaded that occurrence of incident is not disputed and same is being admitted in toto.  The Opponent No.1 pleaded that both the parties are governed by the terms and conditions of the policy.  The Opponent No.1 pleaded that soon after Opponent No.2 was made aware of the disease suffered by the Complainant, Opponent No.2 swung into action and called for all the papers and proceedings from the Complainant.  The Opponent No.1 pleaded that Dr.Med.A Muller had accepted the fact that the reason for the liver failure was not known though he had diagnosed the said liver failure but ignorance is no defence whereas Indian Dr.Purandare was specific and particular about the liver failure being an outcome of alcoholic pancreatic and liver cirrhosis.  Dr.Purandare opined that the Complainant suffered liver failure because of alcoholic pancreatic and liver cirrhosis and therefore, Opponent No.1 had rightly repudiated the claim on the ground that alcoholism        was excluded from the scope of policy coverage.  Opponent No.1 pleaded that repeated allegations are being leveled against it by the Complainant.  Opponent No.1 pleaded that the Complainant pleaded in 21 pages of complaint that her illness was not due to alcoholism whereas the Insurance Company has repudiated the claim for no perceived personal agenda but for plain and simple understanding of medical follow up of the diseases being that an outcome of consumption of alcohol.  Insurance Company denied that it had acted in a malafide or arbitrary manner or irrelevant consideration.  It had handled so many claims and it had become masters in themselves and if claim would have been sustainable it would not have repudiated the claim.  The claim was not tenable under the terms and conditions of policy.  It pleaded that Dr.Perschak’s certificate that denial of coverage based on false judgement, insufficient medical knowledge and non-existence of data was accusation personified against the competency of Indian Medical Fraternity which is acclaimed world over as authority in medicine.  It pleaded that the amount spent in the present treatment  is beyond acceptable limits with extra blanket expenses pulled into magnify the claim beyond limits and hence are put to proof.  It pleaded that the claim of the Complainant is not acceptable under any tenets of morality, legality or accepted norms of social, business or commercial activity.  Hence, it is prayed that the complaint should be dismissed with costs.

(3)                Opponent No.1 filed affidavit in support of written version.

(4)                Opponent No.2 did not contest the matter, so it has been proceeded ex-parte.  We thereafter directed parties to file affidavit of evidence in terms of Section 13(4)(iii) of the Consumer Protection Act, 1986. Complainant filed her own affidavit, affidavit of her witnesses but Opponent No.1 did not file any evidence, so on 30^th August, 2011 we treated his case as closed for evidence.  Opponent NO.2 was already proceeded ex-parte and the matter was adjourned for filing brief notes of arguments.  The Complainant and Opponent No.1 filed written brief notes of arguments.  The Complainant and Opponent No.1 filed brief notes of arguments.  Then we heard Ld.Advocate Mr.Ashutosh Marathe, Advocate for M/s.Hariani & Co. for the Complainant and Mr.Dinesh Gupta, Advocate for the Opponents.

(5)                Following point arises for our consideration:

R  E  A S  O  N  S:

Point No.(i):

At the outset we may mention that in this case that the Complainant had admittedly had taken Overseas Mediclaim Policy from New India Assurance Co. Ltd.  Policy was for the amount of USD 1,00,000/- towards illness and treatment for accident.  The Complainant had gone to Zurich in Switzerland and on 9^th May, 2010 she started suffering from constant chest pain and upper abdominal pain.  She was therefore admitted at Klinik Hirslanden at Zurich.  At the said clinic Dr.Med.A. Muller and Dr.Henry Perschak and Dr.Stefano Tresch examined her.  She was admitted in intensive care unit.  She was treated for dialysis.  Her problems were probed into by clinical tests, CT scan etc. and for 19 days she was indoor patient in the said clinic.  She was discharged on 28^th May, 2010.  She was asked to stay back for 4 days and called for re-consultation on 4^th June, 2010.  On 1^st June, 2010 again she was examined by Dr.Stefano Tresch and Doctor advised her by certificate dated 1^st June, 2010 that she should go back home in India accompanied by Doctor.  Hence, on 2^nd June, 2010 she accompanied with her husband and Dr.Chhablani back to India.  She then filed requisite claim with the Opponent No.2.  Opponent No.2 repudiated the claim on the ground that she had suffered abdominal pain because of alcoholic pancreatitis and liver cirrhosis and medical panel doctor of Opponent No.2 opined that Complainant was treated for alcoholic pancreatitis and liver cirrhosis and according to Opponent No.2, who was processing agent for Insurance Company – Opponent No.1, ailments relating to alcoholism were excluded and therefore, claim was not payable.  Again she went to Zurich along with her husband to meet Doctor at Klinik Hirslanden for further check-up.  She met Dr.Henry Perschak and Dr.Med.A. Muller and told that her claim was repudiated by Insurance Company on the ground that common cause of pancreatitis was billary and alcoholic.  However, Dr.Henry Perschak confirmed that final diagnosis of her ailment was Idlopathic pancreatitis and ruled out possibility of liver cirrhosis and that assessment made by Insurance Company and its panel Doctor was completely out of the blue.  According to Dr.Perschak denial of insurance coverage  of the charges is based on false judgement, insufficient medical knowledge and non-existing date.  Dr.Perschak gave certificate dated 4^th November, 2010 of his conclusion to the Complainant.  Dr.Muller also confirmed on the same day that Complainant did not have liver cirrhosis and gave letter to that effect.  However, the Insurance Company was not in a mood to allow the claim and therefore, the Complainant was required to file this consumer complaint against the Insurance Company and its claim processing Agent – Opponent No.2.

It is pertinent to note that written version was filed, the brief notes of arguments are filed by both the parties.  The Opponents did not file affidavit in evidence though it was asked to do so by this Commission.  Complainant has filed her own affidavit and affidavit of Dr.Ravindra Bapat who is renowned Professor in Surgical Gastroenterology.  He had studied papers submitted by the Complainant along with the foreign Doctors’ treatment, diagnosis and other papers and Dr.Ravindra Bapat in his affidavit ultimately held in paragraph nos.15, 16 and 17 as follows:

“para-15: Taking into consideration the above mentioned facts Mrs.Thackersey suffered from a mild form of acute pancreatitis which recovered functionally and structurally rapidly.  Etiologically no gall stone disease was detected.  The clinical feature of the attack is not similar to alcohol induced pancreatitis.  No other etiological factors could be detected.  Hence, “Idiopathic pancreatitis” was final diagnosis offered by the clinician.  I fully endorse their diagnosis.

Para-16: I say the term Liver Cirrhosis means a chronic, progressive, destructive legion of the liver combined with reparative activity and contractions on the part of connective tissue.  Macroscopic signs are visible and liver profile is altered characteristically.  Three common causes are (a) nutritional (b) alcoholic (c) Post-necrotic/infectious/viral hepatitis.

Para-17:  It is obvious that none of the imaging techniques performed on Mrs.Thackersey indicated evidence of Cirrhosis of Liver.  In fact Liver parenchyma was inconspicuous.  Liver profile does not show altered liver parameters suggestive of Cirrhosis.”

Dr.Bapat further stated that the final diagnosis given by the Klinik Hirslanden at Zurich is Idiopathic pancreatitis due to an unknown cause.  He also disputed opinion of Dr.P.R. Purandare given to Insurance Company.  Dr.Purandare, appears to be a panel doctor of Insurance Company.  He was referred this case for opinion and in his opinion dated 28^th September, 2010 Dr.Purandare told Claims Manager of Opponent No.2 in his report dated 17^th May, 2010 that Complainant suffered alcoholic pancreatitis and liver cirrhosis.  However, according to Dr.Bapat, Expert of imaging techniques does not and should not offer a clinical diagnosis.  He merely notes down the suspected diagnosis on the basis of CT scan report.  Dr.Purandare mentioned emergency clinical diagnosis (bedside diagnosis) and discharge summary.  However, he did not study the clinical course and the final diagnosis arrived by Dr.Henry Perschak and Dr.Med. P. Beisenner, who conclusively mentioned that the final diagnosis is idiopathic pancreatitis and further Dr.Henry Perschak stated that there was no evidence in their records or case history that liver cirrhosis was present.  So, Dr.Bapat disagreed with the opinion given by Dr.Purandare dated 28^th September, 2010.  In view of Dr.Bapat the expert examined by the Complainant, on going through the clinical course of disease, successive ultrasound and CT findings as also the laboratory investigations, the final diagnosis is that Mrs.Nina S.Thackersey suffered from ‘Idiopathic Acute Pancreatitis’ primarily involving head of pancreas with peri pancreatic fluid collection and partial thrombosis of the adjacent segment of portal vein, which was resolving or rechannelising and there was no functional or structural evidence of Cirrhosis of Liver.  He also opined that in the course of further diagnosis made at Zurich by Expert Doctors, both common causes, namely billary and alcoholic could be excluded and therefore, he fully concurred with the diagnosis that Complainant suffered from Idiopathic Acute Pancreatitis as was opined at Klinik Hirslanden at Zurich.  In view of the expert opinion given by Dr.Rvindra Bapat, which is further supported by certificate issued by Dr.Henry Perschak which is at page no.71, it is crystal clear that Complainant suffered a disease ‘Idiopathic pancreatitis’ and in the course of further diagnosis they were able to exclude both common causes of pancreatitis, namely billary and alcoholic and therefore, we are of the strong view that Opponent Nos.1 and 2 had erred in sending repudiation letter on the ground that Complainant suffered from alcoholic pancreatitis and liver cirrhosis and since ailment was related to alcoholism the claim was excluded from the scope of the policy coverage.  The repudiation letter to that effect is at page no.62. Said repudiation in our opinion is not binding on us.  It was a repudiation of the claim made simply to repudiate the claim ignoring the certificates issued by expert foreign Doctors supported by Dr.Ravindra Bapat, who is the renowned Gastroenterology Surgeon of India.  So, relying on the affidavit of Dr.Ravindra Bapat, we hold that the Opponent Nos.1 and 2 were not right in repudiating the rightful claim of the Complainant based on overseas mediclaim policy she had purchased from Opponent No.1.  Surely, Opponent NOs.1 and 2, in the circumstances, were guilty of deficiency in service and unfair trade practice in repudiating the claim of the Complainant.  We, therefore, record our finding on the point No.1 in the negative.

Point No.(ii):

Complainant has sought reimbursement under mediclaim policy for overseas treatment at Zurich CHF 98,827.90 (equivalent to `46,64,677/-) and `5,42,829/-  for the expenses incurred for going to Zurich second time to consult Doctors at Klinik Hirslanden which also includes air fare charges to and fro of Dr.Chablani because on the advice of Doctors at Zurich Dr.Chablani was called from Mumbai, specifically, so that he could accompany Complainant for return journey to India and in fact, accompanied Complainant on her return journey to Mumbai from Zurich.  So her total claim is for `52,07,506/-.  She has also claimed compensation of `3,00,000/- but this we are of the view that the said compensation need not be paid.  But we would like to award interest on that amount by allowing this complaint partly.  The said amount shall be payable with interest @7% per annum though Complainant has claimed interest @18% per annum. Besides, Complainant would be entitled to get `20,000/- as costs of the proceeding.  In the circumstances, we are inclined to pass the following order:

O  R  D  E  R

           (i)        Complaint is partly allowed as against Opponent No.1 Insurance Company.

         (ii)        Opponent No.1 Insurance Company is directed to pay a sum of `52,07,506/- along with interest @ 7% per annum from the date of repudiation of claim i.e. from 20.10.2010 till actual realization.

       (iii)        Opponent No.1 Insurance Company is also directed to pay a sum of `20,000/- towards cost of this complaint.

       (iv)        Inform the parties accordingly.

Pronounced on 10^th May, 2012.