Before  the District Consumer Dispute Redressal Commission [Central], 5th Floor                                         ISBT Building, Kashmere Gate, Delhi

                               Complaint Case No. 118 dt. 27.05.2019

Siddharth Garg son of Shri Sushil Garg

D-4/11, Model Town -2New Delhi                                     …Complainant

                                      Versus

OP1. The Oriental Insurance Company Limited

A/E14 Azad Bhawan, Jhandewalan Ext.

New Delhi-110055

OP2. The Oriental Insurance Company Limited

4th Floor, Agarwal House Asaf Ali Road,

New Delhi-110002                                                                        ...Opposite Party

                                                                   Date of filing:            27.05.2019                                                                          Date of Order:            05.09.2023

Coram: Shri Inder Jeet Singh, President

              Ms. Shahina, Member -Female

               Shri Vyas Muni Rai,    Member

                                             ORDER

Inder Jeet Singh , President

1.1. (Introduction to case of parties) –The complainant makes allegations of deficiency of service and unfair trade practice on the part of OPs that he has been subscribing medi-claim insurance policy and services of OPs since 2011 against sum insured of Rs. 3,00,000/-and then sum insured was increased to Rs.4,00,000/-.. In March 2016, complainant’s mother Smt. Shashi Garg was diagnosed of cancer, however, the OPs refused to reimburse full amount of expenditure incurred by the complainant on hospitalization and treatment of his mother from 04.05.2017 to December 2017. At the time of taking insurance policy, it was represented to the complainant that there will be 100% reimbursement of medical expenses. 

1.2. The complaint was opposed that neither there is any deficiency of service or unfair trade practice on the part of OPs, since complainant himself has violated the terms and conditions of the policy, besides the claim was asked for hospitalisation of his mother, whereas the case of complainant’s mother is not covered within definition of ‘hospitalization’ as she used to be discharged on the same very day or after few hours; she never remained in the hospital for 24 hours or more, which was a condition precedent to be covered within the definition of hospitalization. The complainant failed to furnish requisitioned prescriptions and medical record from the treating doctor in respect of the injections administered from time to time.

2.1. (Case of complainant) – The complainant had purchased Happy Family Floater Policy, which covers his dependent parents (father and mother) from OPs in the year 2011 for sum insured of Rs. 3,00,000/-. The policy was issued to cover any sort of medical treatment facility to be availed by any of the insured person. The complaint enumerates the policy number and its duration w.e.f. 15.02.2011 year by year and lastly the policy was issued on 15.02.2019 but the sum insured was Rs. 4,00,000/- w.e.f. 15.02.2017 onwards. The complainant was assured that policy covers all the medical treatment (without any exclusions or it is not subject to any terms and condition), it was also assured that there will be 100% reimbursement of medical expenses if so incurred.

2.2. In March 2016, complainant’s mother Smt. Shashi Garg was diagnosed with cancer, the complainant incurred medical expenses for treatment and hospitalization. The total expenses incurred were Rs. 5,32,746/-. He lodged total claims for Rs.5,32,746/- [viz. (1) 18RB0101A0679 claim for Rs. 1,94,950/-; (2) 18RB010IA0153 claim for Rs.84,000/-; (3) 18RB0101A1501 claim for Rs.45,323/-; (4) 18RB0101A1502 claim for Rs.43503/-; (5) 18RB0101A1503  claim for Rs.56,900/-; (6) 18RB0101A1511  claim for Rs.53,900/- and (7) 18RB0101A1667 claim for Rs.54,170/-] from 04.05.2017 to December 2017, which were rejected by OPs. Whereas, the complainant had complied with all necessary procedure and also furnished documents but repudiation (as stated in the email). was on frivolous and baseless grounds, The complainant’s mother is suffering from cancer, she has been receiving treatment by hospitalization in day care but OP declined the claim that the treatment is not covered under the insurance policy or its terms and conditions. Whereas the OPs are well aware about history and duration of illness of mother of the complainant as well as of the treatment record, while the doctors were prescribing her to take herceptin/terastuzumab in every 21 days and to take admission in the hospital for taking such therapy. Therefore, declining the claim reflects unfair trade practice of OPs.

          The complainant refers a case (without citation) Dr.Shanthi Rengarajan vs The Oriental Insurance Company ‘that right to avail health insurance is an integral part of the right to healthcare and the right to health, as recognised in Art. 21 of the Constitution Thus, right to healthcare is a part of Right to Life. Medical care and health facilities are part of right to healthcare. With spiraling medical costs, health insurance has to be an integral part of medical care and health facilities. Thus, healthcare without health insurance is a challenge. The individual's right to avail health insurance is an inalienable part of the right to healthcare. That is why the complaint has been filed for necessary directions for reimbursement of Rs. 5,32,746/- of medical expenses incurred, which were declined by the OPs by indulging in unfair trade practice and deficiency of services on the part of OPs. The complainant also requests for costs and other relief in his favour and against the OPs.

2.3. The complaint is accompanied with copies of record of Happy Family Floatter-2015 policy schedule, carrying detail of previous policy also; claim form along with bills (pages 15 to 40), copy of legal notice dated 05.02.2019 and emails record (page 42-49).

3.1 (Case of OPs)- At the outset, the written statement is bearing title as written statement on behalf of OP1 and OP2, it is signed by Sh. Sunil Gupta, competent authority, without disclosing his designation. However, it is not specified as to how he has signed for OP2, since Mr. Sunil Gupta has led evidence exclusively for OP1 besides vakalatnama.

There are two components of the written statement filed, some aspects are admitted and other are denied. The OP1 admits to the extent that the complainant entered into a contract with OP company by purchasing a " Happy Family Floater Policy" in year 2011.for sum assured of Rs.3,00,000/- against premium. The policy was renewed by the OP1 every year for the same amount till Feb, 2017. However, the insured enhanced the sum insured to Rs. 4,00,000/- w.e.f  15.02.2017 by paying extra premium. vide policy (Happy Family Floater-2015 policy) no. 27220/48/2017/22721, w.e.f. 15-02-2017 to 14-02-2018.

3.2. However, the OP1 denies about the status of complainant as a consumer to file the complaint. It also denies that the claim was rejected on baseless, malicious and unsustainable ground. The parties are bound by the terms and conditions of contract/ insurance policy and accordingly the claim was dealt with, it was rejected and the same cannot be construed as unfair trade practice or deficiency in services.

3.3. The police stipulates that in case the person covered under the policy has lodged any claim under previous policy and the sum insured is enhanced under the current policy, for a further claim for the same disease during the current for a further claim for the same disease during the current policy, the earlier limit of sum insured shall be applicable and not the enhanced sum. The claimant is entitled to make a claim upto an amount of Rs 3,00,000/- only that also if his claim is found maintainable under the terms and conditions of the policy.

          Further as per clause 3.17 of the policy conditions of the Happy Family Floater policy, the term "Hospitalisation" means admission in a Hospital for a minimum period of 24 hours in-patient care consecutive hours except for specified procedure/treatment where such admission could be for a period less than 24 consecutive hours, Chemotherapy is one of such procedures.

But in complainant's mother’s treatment, no such procedure was done. CANMAB 440 MG injection was given to her during her stay in the  Petamed Hospital. In all the impugned claims made by the complainant for treatment [viz of  25-02-2017, 23-03-2017, 24-04- 2017, 01-05-2017, 14-06-2017, 09-07-2017, 12-09-2017, 06-10-2017, 24-10-2017, 26-11-2017 and 23-12-2017], she was discharged on the same very day, which is evident from the claim forms furnished. The injection CANMAB 440MG that was administered to the patient is a monoclonal antibody, specially designed to target HER2 Receptors on Breast Cancer Cells. It flags the cancer cells for destruction by the body immune system, which process is not termed as chemotherapy. This process of administering injection during day time does not come under the definition of 'hospitalisation'.  Whereas,  for medi-claim to be maintainable under the policy, Hospitalisation is the precondition. That is why the complainant's claim of the expenses of drugs purchased on the advice of the treating doctor for the treatment of his mother in the Pentamed hospital  was rejected by the OPs.

3.4. There are other violations of terms of the policy by the complainant. He has not replied the queries by TPA of the OP despite giving so many reminders dated 30-08-2017, 11-09-2017, 22-09-2017 and finally on 07- 10-2017. The complainant was asked to reply that why the cashless policy was not availed by him in Network Hospitals. He also failed to provide exact history/duration of present complaint along with previous treatment record and the doctor's consultation advising admission.

3.5. Moreover, for want of any deficiency on the parts of OP or of unfair trade practice, there is no occasion for mental agony etc. to make entitle the complainant for any relief. There is mixed question of facts and law involved, it requires need of expert opinion as well as examination of the treating doctor by way of oral evidence, therefore, it could be by the Civil Court and matter lies in the jurisdiction of Civil Court. Lastly, the complaint is also barred by limitation period. The complaint deserves dismissal.  

4. (Replication of complainant) – The complainant filed rejoinder and he denies all allegations of the written statement, briefly, the complainant is a consumer, the complaint was filed within time and there was declining of valid medical claim, since the medicine was administered as per advices of the doctor. The complainant emphasizes that during the validity period of the insurance policy, Shashi Garg, (who is covered in the above said policy i.e. Happy Family Floaters Policy) was hospitalized every month for the treatment as prescribed by the doctors. She was receiving treatment according to the doctors of Max Hospital, Saket.  She was prescribed Herceptin + Abraxane which is alike Chemotherapy.  The complainant's mother Mrs. Shashi Garg was given CANMAB 440 MG injection, it is similar to Chemotherapy as per the doctors as both are the target therapy.  This medicine was prescribed by the Dr. Nitesh Rohtagi of Max Hospital, Saket on the grounds that both the therapies (Chemo and CANMAB 440 ) target the cancer germs and kills them, whereas CANMAB 440 MG is more effective target therapy as compared to Chemotherapy in relation to Complainant's mother. Moreover, the medicine was bought at discounted rate of Rs. 39,500/- which hospital provides for Rs. 59,500/- and the room allotted and charged were also within the parameter of medi-claim policy ranging from Rs. 3,000/- to Rs. 4,000/-. The complaint is correct.

5.1. (Evidence)- The complainant led his detailed evidence by filing affidavit, duly supported by with the documents filed with the complaint as well as some additional documents.

5.2. Similarly, OP1 led evidence by filing affidavit of Sh. Sunil Gupta, Competent Authority, the affidavit is also accompanied with certain documents of Happy Family Floater Policy, refers expert opinion of doctor Balraj Gupta and medical literature issued by M/s Biocon Ltd., these documents were not filed with the reply. Moreover, the OP1 has introduced certain clauses/ facts in the affidavit, which were not so mentioned in the reply besides opinion of doctor Balraj Gupta, Medical Director of M/s Vipul Medi-corp Insurance TPA Pvt. Ltd.

5.3. There is no evidence led by OP2.

6.1 (Final hearing)- The complainant and the OP1 filed their respective written arguments, the same are replica of their cases.

6.2. The complainant in its written argument counter the case of OP1 that opinion of doctor Balraj Gupta was relied upon, however, it confirms that more than one type of chemotherapy may be done at one point of time.

6.3. Similarly, the OP1 also relies upon Sahara India Commercial Corporation ltd. Vs P. Gajender Chari (2011) CJ 25 (NC), it was held that "parties are bound by the terms of the contract. Further, Consumer Fora have limited jurisdiction and operate in defined area only. Consumer Fora has to decide cases in a summary manner which does not require to elaborate any lengthy arguments." In this case lot of expert opinion is required to be taken while deciding the matter which requires lengthy examination of witnesses and extensive arguments that is possible in civil jurisdictions. The same can't be adjudged by this Forum in a summary manner.

7.1 (Findings)- The contentions of both the sides are considered keeping in view the material on record, statutory provisions of law and the case law presented. There are certain rival objections, they are taken one by one.

7.2.1. The OP1 has reservations that the present matter involves intervention of the Civil Court to adjudicate the issue as component of opinion is involved but on the other side complainant contends that his mother was advised therapies by the treating doctor to administer Chemo and CANMAB 440mg.

          The complainant has not raised any plea that matter involves second opinion of other doctor nor there is any material on the file which may warrant that there is serious mixed question of law and fact or the material available is insufficient to adjudicate the matter in a summary way. Therefore, the present Consumer Fora/ Commission is competent to determine the issue involved. The objection of OP1 stands disposed off accordingly.

7.2.2. The OP1 has also the pleaed that complainant is not a consumer, however, it is opposed by the complainant that he is consumer since policy was obtained by him for himself and his dependent parents.

          The answer of this objection lies in the record itself. The OP1 has not explained how the complainant is not consumer but objection has been taken vehemently. The complainant has proved insurance policy, it is Happy Family Floatter-2015 policy schedule and it also gives detail that the number of persons covered are two and their names are also mentioned in the policy besides relationship of the complainant with the other dependent. The OP1 does not dispute the policies issued. It suffices to establish that complainant is a consumer.                     It is expected from a professional insurance company to avoid from taking such objections, which are against the objector itself from its own record.

7.2.3. The OP1 in its written statement (para 16) took the objection that the complaint is barred by period of limitation, without giving any detail and complainant has reservations that the complaint was filed after rejection of the claim and it is within period of limitation.

          As appearing, both the parties have not computed the period, therefore, the record is being referred. The present complaint was filed on 27.05.2019. The complainant has proved email record (pages 45-49) and complainant’s claim was declined by detail email dated 06.02.2018. The cause of action for filing the claim had arisen from 07.02.2018 and as per Section 24A of the Consumer Protection Act, 1986, the complaint can be filed within two years from the date of cause of action. The complaint dated 27.05.2019 is within two years from the date of cause of action on 07.02.2018.

7.3. So far other rival plea are concerned, the same are being taken together in this paragraph. Since the parties are referring the clauses of insurance policy, especially hospitalization (however, there are two set of insurance policies and in one insurance policy the clause mentioned is 3.17 and the other insurance policy cover filed by complainant mentions it 3.11, therefore without mentioning the clause numbers the appropriate clauses are being reproduced as their contents are same), they are as follows:-

Hospitalisation: means admission in a Hospital for a minimum period of twenty four (24) in-patient care consecutive hours except for specified procedures/treatments, where such admission could be for a period of less than 24 consecutive hours

Day Care Treatment: refers to medical treatment, and/or surgical procedure which is-
(i)
undertaken under General or Local Anesthesia in a hospital/day care centre in less than 24 hours because of technological advancement, and
(ii)_ which would have otherwise required a hospitalization of more than 24 hours.
Treatment normally taken on an outpatient basis is not included in the scope of this definition.

7.4. Thus, considering all the facts, features, record and circumstances, it is held that for want of proof of circumstances of claim to be covered under the policy, the complaint is dismissed for the following reasons:-

(i) The complainant’s mother had undergone treatment at the hospital from 04.05.2017 to December 2017 and as per claim forms with record furnished (pages 15-40), the complainant remained in the hospital either for 6 hours or less than 6 hours and so on, there is not a single instances when the complainant had stayed in the hospital for 24 hours or more.

(ii) There is also provision for day care treatment, when it is neither a case of OPD nor a case of hospitalization.

(iii) either in case of hospitalization or in day care treatment, the patient was to be administered the treatment prescribed by the treating doctor. As per the case of complainant, inclusive of additional record filed in support of affidavit, the complainant’s mother was prescribed injection Herceptne + Abraxane for which certificate dated 18.12.2017 was issued by the Max healthcare hospital. In simple language Herceptne means treatment for early & advanced breast cancer that is Human Epidermal growth receptor 2 positive HER-2. HER-2 means positive breast cancer is now treatable disease. Abraxane means a medicine and to treat certain cases (including breast cancer).

(iv) The complainant was asked by the OP1 in email dated 06.02.2018 to furnish prescriptions of the doctor duly supported by investigation report of advising those therapies.

          The complainant in support of his claims no. 2 to 7 furnished bills of hospitalization as well as bills of injection Canmab 440mg and Canmab 150 mg but the complainant has not proved any prescription in respect of  Canmab 440mg and Canmab 150 mg, if so, prescribed by the doctors.

(v) In case Canmab 440mg and Canmab 150 mg therapy is effective and efficacious than other or with other one, the prescription needs to be proved but complainant has not provided it to OPs nor proved in the complaint,

(vi) By reading sub-clause (i) to (v) above, it clearly manifest that complainant failed to establish that his mother was prescribed treatment/ therapy of Canmab 440mg and Canmab 150 mg with Chemotherapy or both of them together and the complainant’s mother was never hospitalized for 24 hours or more to extend the benefits of insurance policy.

7.5. The complaint fails. The complaint is dismissed. No order as to cost.

8.  Announced on this 05th September 2023 [भाद्र 14, साका 1945].

9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.

[Vyas Muni Rai]                        [Shahina]                              [Inder Jeet Singh]

              Member                         Member (Female)                              President