PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) The Complainant has prayed that the Opposite Party may be directed to pay Rs.1,59,514/- alongwith interest. He has also prayed to grant Rs.1 Lac towards mental agony suffered by him from the Opposite Party and cost of Rs.25,000/- towards this proceeding and incidental charges.
2) It is alleged that he and members of his family had obtained Mediclaim Policy for the period 13/01/2009 to 12/01/2010 from the Opposite Party. It is submitted that he had renewed the said policy till Feb., 2011. According to the Complainant, his wife Rupa Kaushik Pandya, suffered from the illness of ARMD (age related macular degeneration) to her right eye. It is submitted that therefore, the Complainant had not filed further 2 medi claims for 2nd and 3rd medical treatment of Rs.82,467/- each.
3) It is the case of the Complainant that he had obtained information under the Right to Information Act to the Opposite Party and obtained data regarding the number of claims received and paid for such type of treatment till date and it was revealed that out of total 125 claims reported the Company had paid 28th claims and rejected 97 claims during the year 2009-10. It is further submitted that the wife of the Complainant is suffering such decease to her left eye from 1989 and therefore, she is unable to see by the left eye. It is the case of the Complainant that at the time of treatment to her right eye there was bandage for 24 hrs. and she was unable to see by left eye. She was also suffering by hypertension, diabetes etc. and therefore, the doctor advice to admit her in the hospital.
4) According to the Complainant as the first mediclaim for the treatment of his wife was rejected. He had lodged the complaint before the insurance Ombudsman in which it was ordered that both the parties should born 50% of the admissible expenses incurred by the Complainant for the hospitalization of his wife. The Complainant therefore, prayed to grant the reliefs as claimed in para 1 of this order.
5) The Opposite Party by filing written statement contested the claim and contended that it was rightly conveyed to the Complainant that in view of the nature of the treatment it falls outside the scope of health policy hence, the claim is denied. It was also informed to the Complainant that in case of RE age related macular degeneration for administering injection Lucentis there is no need of hospitalization and the same would have been done on OPD basis. It is contended that though the injection is given in the operation theater but in view of the nature of treatment it falls outside the scope of health policies. It is contended that hence the treatment of ARMD with administration of above referred drugs or any other drug is excluded from the scope of cover. The Opposite Party relied the circular dtd.09/02/2009 which is marked as Exh.‘A’ and the copy of reply dtd.07/07/2010 addressed to Insurance Ombudsman and award of Insurance Ombudsman in the case of Shri. Davinder Singh Marvah, which is marked at Exh.‘B’ (colly.). The Opposite Party thus, contended that the Complainant is not entitled to Rs.1,59,514/- as claimed and any amount towards mental harassment. It is thus, submitted that the complaint be dismissed with cost.
The Complainant has submitted rejoinder. The Opposite Party filed affidavit of evidence of Babasaheb Jadhav, Asst. Manager. Both the parties submitted their written arguments. We heard the arguments of the representative of Complainant Mr. Utkarsh Pandya for the Complainant and the argument of Ld.Advocate Smt. Sapna Bhuptani for the Opposite Party.
7) while considering the rival contentions of the parties it appears that the Opposite Party has mainly rejected the claim of the Complainant in view of the circular dtd.09/02/2009 which was issued by the corporate office of the Opposite Party wherein it is mentioned that for treating the AMRD, Drugs like Avastin or Lucentis or Macugen and other related drug is given as interval injection and is an OPD treatment and the same is excluded from the scope of the cover. In our view the circular dtd.09/02/09 is an internal circular and the Complainant has rightly submitted that as he is not privy to the said circular and the contents thereof cannot be said binding on him. The Complainant has rightly contended that as he was not informed of the circular and the contents thereof and the Opposite Party has imposed new terms and conditions under the garb of circular in existing policy, the same cannot be done without the consent or to the knowledge of the policy holder. It is the fact that during the relevant period of the Complainant’s wife’s treatment and the policy which was in force no change was made in it. Furthermore, it appears that the initial policy was obtained by the Complainant on 29/01/99 from the Opposite Party as per the document placed on record at Exh.‘B’. We therefore, find that the submission made by the Complainant that the Opposite Party cannot make changes unilaterally surreptitiously to the detriment of the Complainant and that too without the consent of the Complainant. We also hold that the submission made by the Complainant that the policy clearly stipulates that in the event if there is hospitalization even for a day, the insurance amount claim is required to be paid is legal and proper. In our view thus, the claim of the Complainant is not beyond the scope of insurance policy as contended by the Opposite Party. Furthermore, the Complainant has produced on record the certificate issued by Dr. Rumi Jehangir, dtd.18/12/09, 21/12/09 and 05/07/2010 are at Exh.‘I’ in which it is mentioned that the wife of the Complainant is having history of diabetes. From the certificate produced on record the case made out by the Complainant that looking to his wife’s state of eyes and health Dr. Rumi Jehangir advised hospitalization cannot be disbelieved. The Complainant has also placed on record discharge cards issued by Charak Clinic Nursing Home. The Complainant has also produced all the genuine bills regarding the treatment provided to his wife regarding AMRD. The Opposite Party has relied the decision of Insurance Ombudsman. In the same decision it is observed that in view of the deposition of the Complainant, the Forum notes that the treatment is prolonged one wherein depending upon prognosis the patient has to be administered more number of injections. It is also considered by the said Forum looking at the treatment undertaken by the Complainant, the Forum found that Doctors have been administering Lucentis injection, which is costlier than Avastin and the criteria for choosing Lucentis over Avastin is not clear. It is further held that the various certificates issued by the Specialists indicate divided opinion amongst the doctors regarding the procedure being inpatient or outpatient one. In view of the aforesaid position we hold that the repudiation made by the Opposite Party regarding the claim lodged by the Complainant about the treatment provided by admitting his wife in the hospital and therefore, not payable is not justifiable. Thus, there is a deficiency on the part of Opposite Party as it rejected the claim of the Complainant on wrong ground and without considering the factual position of Complainant’s wife. We therefore hold that the Opposite Party is liable to pay Rs.1,59,514/- as claimed in the present complaint alongwith interest @ 9% p.a. from the date of repudiation i.e. 04/02/2010 till the actual payment. We also hold that the Complainant is entitled for Rs.20,000/- towards mental agony and hardship suffered by him and cost of Rs.5,000/- towards this proceeding from the Opposite Party. In the result the following order is passed –
O R D E R
i. Complaint No.289/2010 is partly allowed against Opposite Party.
ii. Opposite Party is directed to pay Rs.1,59,514/- (Rs. One Lac Fifty Nine Thousand Five Hundred Fourteen Only) alongwith interest @ 9% p.a. from 04/02/2010 till actual payment of it to the Complainant.
iii. Opposite Party is directed to pay Rs.20,000/- (Rs. Twenty Thousand Only) towards the mental agony and hardship caused to the Complainant by repudiating the claim and cost of Rs.5,000/- (Rs. Five Thousand Only) towards this proceeding.
iv. The Opposite Party is directed to comply with the above order within one month from the date of service of this order.
v. Certified copies of this order be furnished to the parties.
