Per Shri S.R. Khanzode, Hon’ble Judicial Member
This composite consumer complaint is filed for alleged deficiency in service on the part of opponent/New India Assurance Company Ltd. (hereinafter referred to as ‘Insurance Company’ and in the title of the complaint, opponent Nos.1&2 are one and the same i.e. the Insurance Company, but one is shown as housed at M.G. Road, Fort, Mumbai, while at the other place described as given address at Divisional Office, Asian building, Ballard Estate, Mumbai) for repudiating medi-claim on the ground of breach of utmost good faith by suppressing previous ailment; and at the second instance against the opponent No.3-Bombay Hospital and Medical Research Centre (hereinafter referred to as ‘Hospital’) for wrongly recording case history and thereafter, refusing to rectify the same. In fact these causes represent altogether a different category of alleged deficiency in services and such composite complaint would not lie. Let us consider the respective cases of deficiency in service against the opponent Nos.1&2 on one side and No.3 on the other side on their respective merit.
2. As far as Insurance Company is concerned, it is the case of complainant that he had taken a medi-claim policy for his family including himself. The insurance cover for the complainant is of `3 Lakhs. Said policy was for a period 03/02/1997 to 02/02/1998 and the medi-claim policy is known as “Hospitalisation and Domiciliary Hospitalisation Benefit Policy”. These facts are not in dispute. When said policy was in force, the complainant on 13/03/1997, suffered a throat infection and therefore, he visited Dr.M.I. Patel. On his examination said doctor doubted or suspected about heart functioning of the complainant and referred to him to Dr.N.J. Shah, a Cardiologist, who examined the complainant on 18/03/1997 and found that complainant had a problem of Aortic valve and advised surgery at the earliest. On 28/03/1997 complainant consulted Dr.S.S. Bhattacharya, a Cardio Surgeon, undergone necessary tests including angiogram done under Dr.A.C. Pareira. Said angiogram had carried out at opponent No.3-Hospital on 10/04/1997. Complainant had history to have breathlessness while climbing Railway-bridge for about 1½ to 2 years prior to this event. However, heart problem was detected on 13/03/1997, supra. Such case history was accordingly informed to Dr.Pareira by the complainant himself. Earlier to 13/03/1997 complainant was enjoying good health and did not visit any doctor. However, it is further alleged on behalf of the complainant that after he had undergone Open Heart Surgery at opponent No.3/Hospital while issuing Discharge Certificate, it was mentioned as a case history, “history of shortness of breath on exertion especially, climbing a bridge since 1 ½ to 2 years” and it is also simultaneously mentioned that “history as having some valvular problem by a GP about 2 years back”. Having not disputed the first part of the history recorded for shortness of breath, etc., the complainant submitted that recording the history of having some valvular problem about 2 years back as ascertained by a general practitioner, is a statement recorded wrongly. Therefore, when the insurance claim was repudiated by the Insurance Company mentioning to it, he wrote opponent No.3/Hospital to rectify said reference as part of case history in the Discharge Card, but since the Hospital did not oblige him; he further submitted that it amounts to deficiency in service on the part of the Hospital and impleaded the Hospital as one of the opponents in this consumer complaint.
3. It emerges as undisputed fact that after having found heart problem, supra, the complainant had undergone Open Heart Surgery at opponent/Hospital and for which he was admitted in the Hospital for a period 30/04/1997 to 18/05/1997. After discharge, he lodged a medi-claim with the Insurance Company claiming amount of `2,67,647/- supported by necessary bills. The Insurance Company obtained opinion of their Panel doctor and referring to the case history noted in the Discharge Card, supra, by its letter dated 09/06/1997 repudiated the insurance claim on the ground of breach of utmost good faith. The complainant made representation to reconsider his claim on 16/06/1997. However, by its further letter dated 14/08/1997 the Insurance Company stick up to its earlier repudiation after the Panel doctor reconfirmed the earlier opinion given. Under the circumstances, alleging that said repudiation is not proper, this consumer complaint against the Insurance Company is filed. The reliefs claimed are as under :-
“(a) That the Opposite Parties be ordered to pay jointly and severally an amount of `9 Lakhs towards compensation together with interest 18% till payment;
(b) Costs of `10,000/- be awarded to the complainant.
(c) Other just and necessary reliefs be granted.”
4. The documents produced on record, particularly, cover note of the policy (however, page behind it is blank where the terms and conditions are mentioned and therefore, such terms and conditions are not available for our consideration); the claim form and the supporting documents of said claim form as well as correspondence between the parties including letters of repudiation, supra. These documents are not in dispute even though they are xerox copies and therefore, we take them into consideration.
5. The other evidence adduced on behalf of complainant is his own affidavit dated 15/09/2011 (page-34to41 of the compilation). There is no affidavit in evidence on behalf of the Insurance Company except the one on record filed as a verification of the written version filed by. It is aa affidavit of Mr.Kamal Jeet Gupta, Divisional Manager of opponent/Insurance Company (xerox copies at page-8to12 of the compilation). Opponent No.3-Hospital also did not adduce any evidence, but tried to rely upon the affidavit of Mr.Siddheshwar De, General Manager (Legal) which is filed by way of verification of their written version dated 28/01/2001.
6. In the instant case, Insurance Company’s Panel doctor from whom opinion was sought and on the basis which repudiation is based, is not filed and there is no material on record to show that the Insurance Company verified the disputed information recorded in the case history of the Hospital Discharge Card. Therefore, unless authenticity of said information recorded in the case history particularly, the disputed portion, supra, is established, said opinion of the panel doctor is of no value. It is for the Insurance Company to justify its repudiation which in the instant case, they failed to do and therefore, their repudiation of the insurance claim i.e. medi-claim is to be held as arbitrary vis-à-vis it could be further held as deficiency in service on the part of the Insurance Company on this count is well established. We hold accordingly.
7. Now coming to the compensation which could be awarded because of such deficiency in service on the part of Insurance Company, it could be seen that the total medi-claim cover for the complainant was for `3 Lakhs. He has made insurance medi-claim for `2,67,647/- which inter alia includes room charges, nursing expenses, intensive care unit charges, hospitalization benefit, other than this i.e. surgeon, anesthetist, medical consultation, specialist fees, anesthesia, blood, surgical appliances, medicines, diagnostic materials, x-ray, etc. These expenses are supported by necessary receipts and bills. These documents as could be seen from the repudiation replies or from the correspondence available on record, are not doubted by the Insurance Company and as such could be safely accepted. Therefore, we find that medi-claim of `267,647/- by way of compensation is to be allowed as against the Insurance Company.
8. Since the medi-claim amount referred above includes expenses for medicines, etc. during the hospitalization, separate claim for expenses for medicines approximately `1 Lakh cannot be allowed besides that such claim is not established by leading proper evidence proving such actual expenditure by the complainant. The complainant also claimed that there was 8 weeks delayed period for treatment and recovery and therefore, he assessed loss of income as ‘Chartered Accountant’ for such period and claimed compensation accordingly. We are afraid, such compensation or damages cannot be allowed firstly, because such claim is not established and at the second instance, such claim will not fall within the ambit of consumer dispute. Since, we propose to award interest @ 9% p.a. on the amount of compensation awarded considering the medi-claim, we find no separate compensation for inconvenience which might have suffered by the complainant due to repudiating the claim, need to be allowed. As far as mental torture, etc. and other related inconveniences are concerned, there is absolutely no evidence led on behalf of the complainant to substantiate the same. However, in the given circumstances of arbitrarily repudiating his medi-claim by the Insurance Company, the complainant must have suffered some inconvenience and torture, we find it just and proper to award compensation of `32,353/- on this count.
9. As far as case against opponent No.3/Hospital is concerned, case history was recorded as per the information given to Dr.Bhattacharya or at the time of admission by the complainant himself. The complainant admits a part of it particularly, about breathlessness while climbing the bridge suffered by him about 2 yours prior to said event of operation or detecting heart problem. However, he only disputed portion of said case history recorded about a general practitioner (GP) detecting such heart trouble. Since, hospital concerned staff, nay, a concerned doctor attending the complainant had recorded it in his routine course of business, the hospital administration cannot rectify the same or alter the same only because complainant disputed it or asked for its rectification by omitting such portion by deleting the same. No services of the opponent No.3/Hospital were hired for this purpose by the complainant. Apart from that by refusing the request of the complainant, no deficiency in service in terms of consumer dispute could be inferred against the opponent/Hospital. Apart from this, unless the person particularly, Dr.A.C. Pareira is confronted which was possible only if he was added as a party, correctness of recording of such history could not have been established. It is pertinent to note that the complainant himself at least admitted that he had made a statement about his problem of breathlessness while climbing railway-bridge for 2 years prior to his examination by said doctor and he narrated such case history to him.
10. For the reasons stated above, we find that no deficiency in service on the part of opponent No.3/Hospital is established and as far as Insurance Company is concerned, only part of claim as stated earlier could be allowed. We hold accordingly and pass the following order :-
-: ORDER :-
1. The Consumer Complaint is partly allowed.
2. Opponent-The New India Assurance Company Ltd., do pay `2,67,647/- plus `32,353/-, total amounting to `3,00,000/- (Rupees Three Lakhs only) to the complainant along with interest @ 9% p.a. with effect from the date of filing of the complaint i.e. 30/12/1998 till its realization.
3. The complaint as against opponent No.3-Bombay Hospital and Medical Research Centre, stands dismissed.
4. Opponent-The New India Assurance Company ltd. to bear its own costs and to pay `10,000/- as costs to the complainant. Opponent No.3 to bear its own costs.
5. Copies of the order be furnished to both the parties.
Pronounced
Dated 23rd December 2011.
