FINAL ORDER / JUDGMENT   

  SMT. SUKLA SENGUPTA, PRESIDENT

                This is an application filed by the complainant U/s 35 of the Consumer Protection Act, 2019.       

The fact of the case in brief is that the Complainant purchased a New India FLOATER Mediclaim policy IFMP in continuation and by way of renewal of earlier policy, having Policy No. 51160534202800000278 for the period on and from 6^th October, 2020 upto 5^th October 2021 from O.P No. 1 Insurance Company.

It is further stated by the Complainant that the said policy was also covered under the O.P No. 2 TPA, NDINDIA Held Insurance TPA Pvt. Ltd. The Complainant obtained the Policy Certificate on payment of the required premium amounting to Rs. 56,496/-. The copy of the policy along with receipt of the premium is annexed herewith as Annexure – ‘A’.

It is the further case of the Complainant that prior to obtain the subject policy the Complainant took the insurance policy on 30^th September, 2010 for the first time and thereafter he has been renewing the policy without any break. At first when the Complainant obtained the policy on 30^th September, 2010, the O.P No. 1 Insurance Company did not provide any policy document containing the terms and conditions and all along the O.P No. 1 informed the Complainant that the policy document does not vary from policy to policy or year to year which can be downloaded from the website of the O.P No. 1. The policy document containing terms and conditions which is downloaded recently is annexed herewith as Annexure – ‘B’.

The Complainant further stated that he was under treatment of Dr. Sourav Sinha, a Vitreoretinal Surgeon, for treatment of Choroidal Neo Vascular Membrane (CNVN) of his right eye. The said doctor advised the Complainant an intravitreal injection and accordingly the first dose was administered on 21^st December, 2020 at B B Eye Foundation, VIP, CNVM being an irreversible disease of retina, it requires administration of intravitreal injection periodically. The Complainant further stated that he submitted his claim before the O.P No. 1 & 2 for the intravitreal injection administered to him on 21^st December, 2020. But the same was denied by the O.P No. 1 vide their communication dated 4^th May, 2021 on the ground stated therein. The copy of the annexure is annexed herewith as Annexure – ‘C’.

It is alleged by the Complainant that the Intravitreal Injection was administered to him on 21^st December, 2020 as per advise of the doctor and again that was administered to him on 19^th January, 2021, 27^th February, 2021, 5^th April, 2021, 10^th May, 2021 and 9^th August, 2021 at the hospital Netrayalam - A Superspeciality Eye Care Centre at Mukundapur, Kolkata as a part of treatment procedure. That injection was also administered to him by the same eye surgeon at Netrayalam on 15^th November, 2021. The treating hospital issued the claim form – part B against each of such procedure to the Complainant for the purpose of reimbursement but the O.P insurance company denied the same. The Complainant on several occasion made communication with the Opposite Parties Insurance Company for reconsideration of his claim of Rs. 1,61,811/- but they did not pay any heed to his request which is the cause of action of the Complainant to file this case. So without having any other alternative the Complainant has filed this case before this Commission with a prayer to give direction to the Opposite Parties to reimburse the claim of the Complainant amounting to Rs. 1,61,811/- towards cost of his treatment either jointly or severally and also prayed for giving direction to the Opposite Parties to pay compensation of Rs. 2,00,000/- to him for harassment mental pain and agony along with litigation cost of Rs. 75,000/-.

The O.P No. 1 has contested the claim application by filing a Written Version denying all the material allegations leveled against it.

The case do run ex-parte against the O.P No. 2 as even after getting notice of this case. The O.P No. 2 did not appear before this Court or filed the Written Version.

It is the case of the O.P No. 1 that the Complainant has no cause of action to file this case. the petition of complaint is harassive, malafied, baseless and bad for misjoinder and nonjoinder for necessary parties. thus the same is liable to be dismissed.

It is stated by the O.P No. 1 that admittedly the Complainant has purchased the insurance policy being policy no. 51160534202800000278 for the period on and from 06/10/2021 03:09:35 p.m. upto midnight of 05/10/2011 covered under New Indian Floater Mediclaim Policy. The photocopy of the subject policy certificate is annexed herewith as Annexure –‘A’.

The O.P No. 1 further alleged that the Complainant purportedly filed this petition of complaint U/s 35 of the Consumer Protection Act, 2019 by suppressing the material fact.    It is further stated by the contesting O.P No. 1 that on received of the claim form made by the Complainant dated 09/08/2021 the O.P sent the same to the O.P No. 2 and the O.P No. 2 after scrutinizing the entire documents informed the O.P No. 1 vide its letter dated 10^th November, 2021 as per reference mentioned in the said letter that, on perusal / scrutiny of the claimed documents the date of inception of 30/09/2010 patient treated for RECNVA from 09/08/2021 to 09/08/2021.

It is evident that the INTRAVITREAL INJECTION – ACCENTRIX administration under Tropical Anesthesia, it is an OPD TREATMENT though this injection is given in the operation theatre in view the nature of treatment it falls outside this scope of our Health Policy.

Hence, the treatment with administration of above branch or any other excluded from the scope of covered and does not required hospitalization, procedures / treatment usually done in patient department are not payable under the policy even if converted as an impatient in the hospital for more than 24 hours.

Hence, the claim has been repudiated by the O.P No. 1. The O.P No. 1 denied its liability to give the compensation. It is further stated by the O.P No. 1 that the Insurance Ombudsmen also passed its award in support of the decision of the O.P No. 1 & 2. So there is / was no deficiency-in-service on the part of the O.P No. 1. The question of giving compensation to the Complainant by the O.P No 1 does not arise at all.

The petition of complaint is baseless and the same is liable to be dismissed.

In view of the above stated facts and circumstances the points of consideration are as follows:-

1. Is the case maintainable in its present form and law?
2. Is the Complainant a consumer?
3. Has the Complainant any cause of action to file this case?
4. Is there any deficiency in service on the part of the Opposite Parties?
5. Is the Complainant entitled to get the relief as prayed for?
6. To what other relief / reliefs is the Complainant entitled to get?

All the points are taken up together for conveyance of discussion and to avoid unnecessary repetitions.

On a close scrutiny of the materials on record and the position of law it appears that this Commission has got ample jurisdiction both territorial as well as pecuniary to try this case.

From the facts and circumstances of this case it is also revealed that the Complainant has filed this case within the period of limitation.

Even on repeated requests made to the Opposite Parties to settle the claim in his favour. The Opposite Parties did not pay any heed to his request and repudiated the claim. Hence, the Complainant has no other alternative to file this case from which it is palpably clear that the Complainant has sufficient cause of action to file this case.

Admittedly the Complainant has purchased a New India FLOATER Mediclaim policy IFMP in continuation and by way of renewal of earlier policy, having policy no. 51160534202800000278 for the period on and from 06/10/2021 03:09:35 p.m. upto midnight of 05/10/2011 from the Opposite Party No. 1 on payment of the required premium of Rs. 56,496/-, sum assured was of Rs. 8,00,000/- as we got it from the Policy Certificate (Annexure – ‘A’), from which it is crystal clear that the Complainant is a consumer and the Opposite Parties are the service provider.

Let us see whether there is / was any sort of deficiency in service on the part of the Opposite Parties.

Admittedly, the Complainant undergone Choroidal Neo Vascular Membrane treatment under a Victreo Retinal Surgeon namely Dr. Sourav Sinha on 21^st December, 2020 at B B Eye Foundation, VIP, CNVM which is an irreversible disease of retina. The Complainant was administered Intravitreal Injection on several dates i.e. on 21/12/2020, 19/01/2021, 27/02/2021, 05/04/2021, 10/05/2021 and 09/08/2021 except the injection administered dated 21/12/2020 the Complainant administered the other injections as mentioned above at the hospital Netrayalam-a Super-speciality Eye Care Centre at Mukundapur Kolkata as a part of the treatment procedure. Such injection was also administered by the same eye surgeon on Netrayalam on 15/10/2021. Thereafter, the Complainant informed the O.P No. 1 about his treatment and placed the claim of a sum of Rs. 1,81,104/- on 21/12/2020. The O.P No. 1 has repudiated the claim in consultation with the O.P No. 2.

On several occasions the Complainant requested the Opposite Parties to repudiate the claim of reimbursement made by the Complainant. Again the Complainant sent a letter to the Opposite Parties on 13/05/2021 for reimbursement of the claim but in vain. From the evidence on record as adduced by the parties to this case, it is revealed that the insurance ombudsman also denied the claim of the Complainant but from the Annexure – ‘A’ from the 2.15., 3.15.6 and Clause F of Chapter 5 of the Modern Treatment Method & Averments as per rules and regulations of IRDA of the subject policy certificate it is palpably clear that the Complainant is entitled to get the 10% of sum assured of the subject policy to a maximum of Rs. 75,000/- for Intravitreal Injection. So the Opposite Parties cannot repudiated the claim straight way vide its letter dated 04/05/2021 with a remark “as per policy terms and conditions.” The Complainant specifically submitted all the required documents before the Opposite Parties and repeatedly requested them to re-consider the claim of reimbursement but the Opposite Parties did not pay any heed to his request and repudiated the claim vide its letter dated 04/05/2021.

It is the fact that the sum assured of the subject policy was of Rs. 8,00,000/- so as per guideline of the IRDA the Complainant is entitled to get 10% of the sum assured to a maximum of Rs. 75,000/-. From which it means that the Complainant though claimed a sum of Rs. 1,81,104.00/- but actually as per guideline of the IRDA and terms and conditions of the subject policy the Complainant is entitled to get upto 10% of the sum assured subject to a maximum of Rs. 75,000/- for Intravitreal Injection. so, from the conduct of the Opposite Parties it can safely be held by the Commission that the Opposite Parties arbitrarily repudiated the claim of the Complainant violating the guidelines of the IRDA and terms & conditions of the subject policy, being the service providers. Which they cannot.

Hence, in view o f the discussion made above it is opined by this Commission the Complainant being a consumer is entitled to get upto 10% of the sum assured (Rs. 8,00,000/-) subject to a maximum of Rs. 75,000/- out of Rs. 1,81,104.00/- as claimed by him. It is also held that the Complainant being a consumer within the ambit of Consumer Protection Act, 2019 could be able to prove the deficiency in service on the part of the Opposite Parti4es  being the service providers to him. From which without having any hesitation, it is opined by this Commission that the Complainant being a consumer could be able to prove his case against the Opposite Parties / Service Providers beyond all reasonable doubt for which the service providers are liable to pay compensation to him and also to settle the claim in favour of the Complainant.

The Complainant proved the case against the Opposite Parties beyond all reasonable doubts and is entitled to get the relief as prayed for in part.

All the points for consideration are considered and decided favourably to the Complainant.

The case is properly stamped.

Hence,

Ordered,

That the case be and the same vide no. C.C./191/2022 is decreed on contest in part against the Opposite Parties with a cost of Rs. 5,000/-.

The Opposite Parties jointly or severally are directed to pay upto 10% of the sum assured of the subject policy to the maximum of Rs. 75,000/- to the Complainant within 45 days from this date of order.

The Opposite Parties jointly or severally are further directed to give compensation to the Complainant for the sum of Rs. 50,000/- for negligence, harassment, mental pain and agony along with litigation cost of Rs. 25,000/- i.d. the Complainant will be at liberty to execute the decree as per law.

Copy of the judgment be uploaded forthwith on the website of the Commission for perusal.