PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The Complainant has obtained Mediclaim Policy No.110900/34/08/11/0000 4264 from the Opposite Party No.1 for the period 20/06/08 to 19/06/09. Alongwith complaint the Complainant has produced copy of the mediclaim policy at Exh.1. Sum assured was given to the Complainant of Rs.5 Lacs on payment of premium of Rs.20,396/-. During validity period of the said policy, the Complainant was diagnosed as suffering from Classic Choroidal Neo Vascular Membrance and had to undergo an Eye Surgery and was administered Inj. Visudyne and, Inj. Lucentis every month for three months. The Complainant has produced discharge card of Infinity Eye Hospital dtd.10/11/08, Hospital Bill dtd.10/11/08 for Rs.72,823/- another discharge card of the same hospital dtd.13/11/08 and bill dtd.13/11/08 for Rs.12,250/-. According to the Complainant she incurred total expenses of Rs.2,34,866/- for aforesaid medical treatment.
2) The Complainant had submitted claim for reimbursement of the amount of Rs.2,34,866/- of medical treatment to the Opposite Party under the mediclaim policy. Opposite Party No.2 who is TPA of Opposite Party No.1 has repudiated claim of the Complainant vide their letter dtd.31/12/08 and letter dtd.13/02/09 under two different conditions of the mediclaim policy and the same is confirmed by Opposite Party No.1 vide their letter dtd.11/06/09. The Complainant has produced aforesaid two repudiation letters alongwith complaint at Exh.‘C.
3) Being aggrieved by the decision of repudiation of claim the Complainant approached Insurance Ombudsman. The Insurance Ombudsman have heard both the parties and passed award. Copy of award is produced by the Complainant alongwith complaint at Exh.’D’. It is submitted that Insurance Ombudsman without considering evidence of Eye Surgeon who operated upon the Complainant and of Dr. Lalit Verma and Dr. Syrus M. Shroff who certified Inj. as administered, Constitutes an “Operation”. However, the Insurance Ombudsman arbitrarily allowed the claim as ex-gratia for 50% for admissible expenses incurred for Right Eye Inj. Visudyne and Inj. Lucentis taken by the Complainant at Infinity Eye Hospital. The Complainant was not satisfied with the award of the Insurance Ombudsman and therefore, she has filed this complaint before this Forum.
4) The Complainant has requested to direct Opposite Party to pay to the Complainant hospitalization expenses of Rs.2,34,866/- with 12% interest from the date of submission of claim till realization of entire amount to the Complainant. the Complainant has also prayed to direct Opposite Party to pay to the Complainant Rs.50,000/- as compensation for mental torture & harassment and Rs.20,000/- towards cost of this proceeding.
5) Alongwith complaint the Complainant has filed her affidavit and produced documents as per list of documents.
6) Opposite Party No.1 has filed written statement and thereby resisted claim of the Complainant contending interalia that the complaint is misconceived, bad in law and does not disclose any cause of action. Therefore, complaint is liable to be dismissed with cost. According to the Opposite Party No.1, there is no deficiency in service on the part of Opposite Parties. The Complainant’s claim had been adjudicated as per award of the Insurance Ombudsman. Opposite Party has denied allegations that Complainant has availing mediclaim policy regularly from Opposite Party No.1 for last many years. It is denied that the Complainant was diagnosed as suffering from Classic Choroidal Neo Vascular Membrance for her right eye and was advised to undergo eye surgery and was administered Inj. Visudyne and, Inj. Lucentis every month for three months.
7) It is admitted by the Opposite Party No.1 that Complainant’s claim was repudiated by Opposite Party No.2 on two grounds and further the Insurance Ombudsman has passed award to pay ex-gratia 50% of the admissible expenses incurred for Right Eye Injection taken by the Complainant for Infinity Eye Hospital. It is submitted that the Complainant cannot claim more amount in view of the terms and conditions of the policy and therefore, complaint deserves to be dismissed with cost.
8) Opposite Party No.2 was duly served with the notice of this complaint but inspite of service of notice, Opposite Party No.2 remained absent and so ex-parte order was passed against Opposite Party No.2.
9) The Complainant has filed rejoinder and thereby denied the allegations made in the written statement filed by the Opposite Party No.1. Opposite Party No.1 has filed affidavit of evidence of S.R. Baig, Divisional Manager. The Complainant has filed written argument. Opposite Party No.1 has also filed written argument. From 17/05/2012 Opposite Party No.1 remained absent so we heard oral submissions of Ld.Advocate Subhash Chaubal for the Complainant and closed the matter for orders.
10) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant has proved deficiency in service on the part of Opposite Party No.1 & 2 ?
Findings : Yes.
Point No.2 : Whether the Complainant is entitled for reliefs from Opposite Parties as prayed for ?
Findings : As per final order.
Reasons :-
Point No.1 :- It is undisputed facts that the Complainant had obtained mediclaim policy form the Opposite Party No.1 mentioned in the complaint for the period from 20/06/08 to 19/06/09. In the complaint the Complainant has averred that under the said policy Opposite Party had given sum assured of Rs.5 Lacs. The Complainant has produced copy of the policy alongwith the terms and conditions. Opposite Party No.1 has not denied aforesaid fact of issuance of mediclaim policy to the Complainant.
According to the Complainant during the validity period of the aforesaid mediclaim policy, the Complainant diagnosed as suffering from Classic Choroidal Neo Vascular Membrance for her right eye and was advised to undergo an eye surgery and was administered Inj. Visudyne and, Inj. Lucentis every month for three months. It is submitted by the Ld.Advocate for the Complainant that the Complainant had took aforesaid medical treatment in Infinity Eye Hospital. In support of his contention Ld.Advocate has relied upon discharge card of Infinity Eye Hospital produced on record. The Complainant has also produced copies of the bills issued by the Infinity Eye Hospital for the aforesaid medical treatment. According to the Complainant, she incurred total expenses of Rs.2,34,866/- for aforesaid treatment. She had submitted claim for reimbursement of amount of Rs.2,34,866/- from the Opposite Party under the mediclaim policy. This fact is admitted by the Opposite Party No.1. Opposite Party No.2 is TPA of Opposite Party No.1. Opposite Party No.2 vide their letter dtd.13/12/08 repudiated claim of the Complainant under the Mediclaim Policy Clause 4.4.19 contending that “Right Eye CNVM, Inj. Lucentis given, is an unproventreatment, as per policy conditions. Hence, claim stands denied under Clause 4.4.19”.
Ld.Advocate for the Complainant has submitted that Opposite Party No.2 has wrongly rejected claim of the Complainant alleging that treatment which Complainant had taken in Infinity Eye Hospital is an unproven treatment. The Complainant made representation but it was not considered. The Complainant’s advocate has referred to xerox copy of letter dtd.29/05/09 of Dr. Cyrus M. Shroff, President, Vitreo – Rotinal Society of India, in which he has certified that “intra-vitreal Injection is an intra-vitreal surgical procedure. The Procedure should be carried out under aseptic conditions, which includes the use of surgical hand disinfection, sterile gloves, a sterile drape and a sterile eyelid speculum (or equivalent) and the availability of sterile paracentesis (if required). The periocular skin, eyelid and ocular surface should be disinfected. Adequate anaesthesia and a broad-spectrum topical microbicide should be administered prior to the injection.”
Ld.Advocates further relied upon another certificate of Dr. Lalit Verma, Hony. General Secretary, All India Ophthalmological Society, Senior Consultant, Indraprastha Apollo Hospital, New Delhi. It appears that this letter was sent by Dr. Verma to Dr. R.K. Kaushik, Chief Manager of New India Assurance Co. Ltd. in which he has stated that “I am to say that infrasuitical Injection of drugs like Avastin, Lucentis, Macugen of Steroids and other related drugs are done in the operation theater. For administration of these injections procedure needs to be carried out under aseptic conditions, which includes the use of surgical hand disinfection, sterile gloves, a sterile drupe and a sterile eyelid speculum (or equivalent) and the availability of sterile paracentesis (if required).
All this you will kindly appreciate involves surgical procedure. It is not an OPD treatment as appears to have been interpreted for settling a Medi Claim. It is requested that you may kindly take suitable action at your end for settling the claims by treating such cases as that of Surgical Procedure and not OPD Procedure.”
As per clause 4.4.19 of mediclaim policy, the Insurance Company is not liable to pay expense experiment treatment non proven treatment (not recognized by Indian Medical Council). It is submitted that the aforesaid letters clearly disclose that treatment undergone by the Complainant for her right eye is well recognized treatment and Dr. Lalit Verma who is Hon. Secretary of all India Ophthalmological Society had informed aforesaid fact to the Chief Manager of Opposite Party No.1. It is submitted that after receipt of aforesaid letters Opposite Party No.2 TPA of Opposite Party No.1 by letter dtd.13/02/09 again repudiated claim of Complainant on the ground that the treatment taken by the Complainant was OPD treatment and it does not require hospitalization. So claim is not admissible under 1.9 of the Mediclaim Policy. Clause 1.0 provides coverage of insurance of hospitalization expenses. Ld.Advocate for the Complainant has referred to clause 3.4 of the Mediclaim Policy and submitted that for certain medical treatment time limit of 24 hours is not made applicable. It appears from the list of Surgical/Procedure given in Clause 3.4. Number of Surgical/Procedure are included such as Antizohize Vaccination, Coronary Angiography/Angioplasty, Eye Surgery, Dental Surgery, etc. Further it appears from the letters of Dr. Cyrus M. Shroff and Dr. Lalit Verma that Surgical Procedure undergone by the Complainant at Infinity Eye Hospital is not a OPD treatment. Therefore, it appears that Opposite Party No.2 as by letter dtd.13/02/09 has wrongly repudiated claim of the Complainant. Insurance Ombudsman in its award dtd.31/09/09 has recorded that “intra-vitreal Injection is an intra-vitreal surgical procedure.” In view of the opinion of the Dr. Cyrus President and Dr. Lalit Verma, Hon. General Secretary of all India Ophthalmological Society, it is clear that Opposite Parties have wrongly repudiated claim of the Complainant and it amount to deficiency in service on the part of Opposite Parties. Therefore, point no.1 is answer in affirmative.
Point No.2 :- The Complainant has claimed recovery of Rs.2,34,866/- incurred for the medical treatment of her right eye form the Opposite Parties under the Mediclaim Policy. As discussed above, Opposite Parties have wrongly repudiated mediclaim of the Complainant. The Complainant has produced bills of medical expenses. Considering evidence on record we hold that Opposite Parties are liable to pay Rs.2,34,866/- to the Complainant.
The Complainant claimed interest @ 12% p.a. from the date of submission of claim to the Opposite Party till realization of entire amount. The Complainant has claimed interest at rather excessive rate. Considering the facts and circumstances of the case, we think it just to direct Opposite Parties to pay to the Complainant interest @ 9% p.a. on Rs.2,34,866/- from the date of repudiation of claim i.e. from 31/12/2008 till realization of entire amount to the Complainant.
The Complainant has claimed Rs.50,000/- as compensation for mental torture and harassment and Rs.20,000/- towards cost of this proceedings. Considering the facts and circumstances of the case, we think it just to direct Opposite Parties to pay to the Complainant Rs.10,000/- as a compensation for mental torture and harassment and Rs.3,000/- as cost of this proceeding. Hence, we answer point no.2 accordingly.
For the reasons discussed above, compliant is partly allowed and we pass the following order -
O R D E R
i.Complaint No.22/2010 is partly allowed.
ii.Opposite Party No.1 & 2 shall jointly and/or severally pay an amount of Rs.2,34,866/- (Rs. Two Lacs Thirty
Four Thousand Eight Hundred Sixty Six Only) to the Complainant with interest @ 9% p.a. from 31/12/2008 till
realization of entire amount to the Complainant.
iii.Opposite Party No.1 & 2 shall jointly and/or severally pay to the Complainant an amount of Rs.10,000/- (Rs.
Ten Thousand Only) as compensation for mental torture and harassment and Rs.3,000/- (Rs. Three
Thousand Only) towards cost of this proceeding.
iv.Opposite Party No. 1 & 2 jointly and/or severally shall comply with the aforesaid order within one month
from the date of receipt of this order.
vi. Certified copies of this order be furnished to the parties.
