PER SHRI. S. G. CHABUKSWAR – HON’BLE MEMBER
1) This is a complaint for reliefs of declaration that Opposite Parties are guilty of deficiency in service and unfair trade practice, reimbursement of medical expenses Rs.19,062/- with interest @ 18% p.a., compensation and cost.
2) The admitted facts are as under –
The Complainant is the holder of Mediclaim Policy bearing No.111800/34/10/11/00004945. The Insured under the said Mediclaim Policy are the Complainant himself and sum insured was Rs.3,00,000/-, his wife Mrs. Sita Eugene Gomes and a son Mr. Sean George Gomes sum insured was Rs.3,00,000/- each. The said mediclaim policy was valid for the period from 09/07/2010 to 08/07/2011. Opposite Party No.1 issued above said policy to the Complainant on 09/07/2010. Opposite Party No.2 is the third party administrator of Opposite Party No.1. Mrs. Sita Eugene Gomes, wife of Complainant was suffering from severe pain in the right wrist and was under the treatment of Dr. S.S. Kulkarni, M.S. (Ortho) and she was diagnosed with acute recurring pain of her right wrist. The wife of Complainant was advised surgery on her right wrist for removing a tendon in order to eliminate the recurring pain in the right wrist. Before the operation Dr. S.S. Kulkarni had advised to the Complainant’s wife to undergo various medical tests. On 08/10/2010 Complainant’s wife underwent surgery on her right wrist and she was discharged from the hospital on the same day. The operation was performed by Dr. Kulkarni at Smt. Motiben B. Dalvi Hospital, Nyamurti Sitaram Patkar Marg, Mumbai – 400 007. The expenses for operation including Dr. Kulkarni’s fees, cost of various tests, medicines and post surgery treatment is Rs.19,062/-. The Complainant had lodged the claim with Opposite Party No.2 for reimbursement of Rs.19,062/- on 01/12/2010. on 23/12/2010 Opposite Party No.2 informed to the Complainant that the claim lodged by the Complainant has been rejected as it is not submitted within 30 days from the date of discharge of wife of Complainant form the hospital.
3) The case of the Complainant is that Opposite Party No.2 processed some wrong case papers of some other claimant for rejecting the Complainant’s legitimate claim. Opposite Parties have rejected the claim of the Complainant under clause 11 of the Mediclaim Policy. Clause 11 of the mediclaim policy issued by Opposite Party No.1 is void because the said clause extinguishes the Complainant’s right on the expiry of the specified period of 30 days of discharge from the hospital. In view of the provisions of clause (b) of Section 28 of the Indian Contract Act, 1872 the purported clause 11 of the mediclaim policy is void. The said clause illegally restricting the Complainant from enforcing his right to claim reimbursement of the amount incurred on account of his wife’s surgery. As per the provisions of the Consumer Protection Act, 1986 the Complainant has right to claim reimbursement of expense Rs.19,062/- from Opposite Parties within two years from the date of discharge from the hospital to the wife of Complainant. The Complainant requested to the Opposite Parties for reimbursement of medical expenses by the letter dtd.11/08/2011. Opposite Parties received the said letter but they neither replied the letter nor paid the amount. Hence, this complaint for the reliefs mentioned in above para no.1.
4) Opposite Parties have resisted the claim by filing written statement. The contentions of Opposite Parties is that, the claim of Complainant is not acceptable as it falls under clause 11 of the policy. When Opposite Party issued the policy clause 11 was the part and parcel of the said policy. The Complainant had already accepted the policy alongwith the said clause and exclusions. The claim of the Complainant has been rightly rejected as it was submitted after 30 days from the discharge of Complainant’s wife from the hospital. Opposite Parties have denied that they are engaged in unfair trade practices and deficiency in service. Opposite Parties have denied all rival contentions of the Complainant and prayed for dismissal of the complaint.
5) From the rival pleadings of the parties following points arises for determinations and our findings thereon are noted against each of them for the reasons given below –
Points Findings
1. Does the Complainant prove that there is deficiency Affirmative.
in service and unfair trade practice on the part of
Opposite Parties ?
2. Whether Complainant is entitled to the reliefs medical expenses
as claimed ? Rs.19,062/- and
Rs.4,000/- for
mental agony,
Rs.3,000/- cost of
complaint.
3. What order ? As per final order
Reasons
6) The Complainant has submitted his affidavit of evidence. Opposite Parties have filed affidavit of evidence of Shri. Chandrakanat Khatri, Senior Divisional Manager. Both parites have submitted their respective written notes of arguments. We have gone through the documents produced by the parties on record. We heard Shri. Suraj Desai Almeida, Ld.Advocate for the Complainant and Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Parties.
7) Point Nos.1 & 2 :- The admitted facts have been already narrated in para no.2 therefore, those are not mentioned here to avoid repetition. As per the admitted facts mentioned in para no.2 there is no dispute between the parties regarding issuance of policy, premium, medical treatment, surgery and expenses of medical treatment and medicines. The dispute between the parties is only regarding the correctness of repudiation of claim of the Complainant. According to the Complainant, his claim has been wrongly repudiated by the Opposite Parties therefore, the question is arosed whether Opposite Party has rightly repudiated the claim of Complainant or not.
8) Opposite Parties have submitted terms and conditions of the policy in question. Clause 11 of the policy says that –
“Final claim alongwith hospital receipted original Bills/Cash memos, claim form and list of documents as listed in the claim form should be submitted to the Policy issuing Office/TPA not later than 30 days of discharge from the hospital. The insured may also be required to give the Company/TPA such additional information and assistance as the Company/TPA may require in dealing with the claim.”
The wife of the Complainant was discharged from the hospital on 08/10/2010. The Complainant had submitted claim form with Opposite Parties on 01/12/2010. The claim was not lodged with the Opposite Parties within 30 days from the date of discharge of wife of the Complainant from the hospital as laid down in clause 11 of the policy in question. Hence, the claim of the Complainant has been repudiated by the Opposite Parties.
9) There is no provision in the policy in question after completion of 30 days mentioned in clause 11 to which authority insured/claimant has to approach for processing the claim. The policy is silent on the said point. The Forum cannot go beyond the terms and conditions of the policy, but as the further remedy has not been given in the policy in question this Forum has power to entertain the complaint and it would not be contrary to the terms of the policy.
10) The Insurance Regulatory and Development Authority by it’s circular IRDA/HLTH/MISC/CIR/216/9/2011 dtd.20/09/2011 advised to all the insurers that insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained recorded and the insurers should satisfy themselves that the delayed claim would have otherwise been rejected even if reported in time. It is also advised that the insurer’s decision to reject a claim shall be based on sound, logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. In the present case Opposite Parties have repudiated the claim of Complainant on the sole ground of limitation which is contrary to the provisions of above circular and hence, it is unfair trade practice and deficiency in service on the part of Opposite Parties.
11) Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Parties at the flage end submitted that terms and conditions of the policy 2007 shows 24 hours hospitalization is mandatory. The wife of the Complainant was not admitted in the hospital for 24 hours hence, the Complainant is not entitled to the claim amount. Opposite Parties have submitted terms and conditions of policy 2007. As per clause no.3.4 of the policy hospitalization means admission in any hospital/nursing home in India upon the written advice of a Medical Practitioner for a minimum period of 24 consecutive hours. The time limit of 24 hours will not be applicable for the surgeries/procedures mentioned in the list therein. The surgeries of eye, umbilical, kidney stone removal, piles, fistula, prostate, stone in gall bladder, tonsillectomy and various other surgeries have been shown in the said list. It has also been mentioned in clause 3.4 that, any other surgery/procedures agreed by TPA/Company which requires less than 24 hours hospitalization due to advancement in medical technology. In the present case the wife of Complainant underwent the surgery on her right wrist for removing a tendon which required hospitalization less than 24 hours. The nature of surgery of the wife of the Complainant is similar with the above surgeries mentioned in the list of clause 3.4 of the policy 2007. In view of the evidence available on record and above discussion we hold that Opposite Parties are engaged in unfair trade practice and rendered deficiency in service to the Complainant. We further hold that Complainant is entitled to the reimbursement of medical expenses Rs.19,062/- from Opposite Party Nos.1 & 2 and also compensation Rs.4,000/- for mental agony caused to him, Rs.3,000/- cost of the complaint. Hence, point no.1 answered in theaffirmative and point no.2 accordingly.
In the result complaint deserves to be allowed with cost. Hence, we proceeds to pass following order –
O R D E R
i. Complaint No.307/2011 is allowed with cost.
ii. Opposite Party Nos.1 & 2 are directed to pay to the Complainant Rs.19,062/-(Rs. Nineteen Thousand Sixty Two Only) towards
reimbursement of medical expenses.
- Opposite Party Nos.1 & 2 are directed to pay to the Complainant Rs.4,000/-(Rs. Four Thousand Only) compensation for mental agony caused to him.
iv. Opposite Party Nos.1 & 2 are directed to pay to the Complainant Rs.3,000/-(Rs. Three Thousand Only) towards cost of the
complaint.
- Opposite Party Nos.1 & 2 are directed to pay the amount mentioned in above para Nos. ii to iv to the Complainant within one month from the date of this order.
vi. Certified copies of this order be furnished to the parties.
