This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainants that the complainant no. 2 is a mediclaim policy holder of Oriental Insurance Company with his wife and his dependant parents as family policy accepted on 13.3.2012 and the complainant no. 2 is not a defaulter of single premium and till date is paying the premium regularly. That complainant no. 1 was admitted to Upkar Nursing Home at Kolkata on 20.3.2016 for operation of Prostate Gland and after operation he was discharged on 23.3.2016 and the son of complainant no. 1 is having the aforesaid mediclaim policy under the Oriental Insurance Company ltd. vide Policy no. 311702/48/2016/2265 which covered the insurance of his family as well as the parents and as such it was family medical policy having sum assured of Rs. 1,00,000/- each renewable every year.

The complainants also state that as per the said policy the following reasonable & Customary Expenses are reimbursable under the said policy:-

1. Room Boarding and Nursing Expenses as provided by the Hospital/ Nursing Home not exceeding 1% of the sum insured or Rs. 5000/- per day whichever is less.
2. IC Unit expenses not exceeding 2% of the Sum Insured or Rs. 10,000/- per day whichever is less (Room including I.C.U. stay should not exceed total number of admission days).
3. Surgeon, Anesthetists, Medical Practitioner, Consultants, Specialists Fees.
4. Anesthesia, Blood, Oxygen, Operation Theatre Charges, Surgical Appliances, Medicines & Drugs, Dialysis, Chemotherapy, Radiotherapy, Artificial Limbs, Cost of Prosthetic devices implanted during surgical procedure like pacemaker, relevant laboratory/ Diagnostic test, X-ray, etc.
5. Ambulance Services-1%of the sum insured or Rs. 2000/- whichever is less shall be reimbursable in case patient has to be shifted from residence to hospital in case of admission in Emergency Ward/ ICU or from one  Hospital/ Nursing home to another Hospital/ Nursing home by registered ambulance only for better medical facilities.

The complainants also state that the complainant no. 1 had to go through post operation medical observation and treatment and as such after his discharge he arranged all the medical papers and made his claim application on 26.3.2016 and submitted all the medical bills along with filled up claim form for the purpose of the said treatment with an amount of Rs. 86,989.20/- and the said claim has been made pursuant to the guideline provided in the insurance policy. That after two months of placing the claim form on 27.5.2016 without any covering letter the complainant has received a sum of Rs. 25,000/- through R.T.G.S. in his son’s SBI Saving Account No. 30268289356 without explaining on which basis the complainant received Rs. 25,000/- out of his claim of Rs. 86,989.20/- and that is beyond reasonable justification and the said mediclaim authority did not show minimum formality by giving letter communication whether they would sent further payment in respect of rest of the claim or not and then the complainant no. 1 sent a reminder on 16.6.2016 to make it clear whether the insurance authority finally determined the claim for a sum of Rs. 25,000/- or not out of the actual medical expenditure of Rs. 86,989.20 and if so why the said authority concerned curtailed the rest of claim amount of the complainant no. 1 and the complainant no. 1 has also volunteered to the opposite party that if the opposite party required any further paper/document the complainant no. 1 is ready and willing to provide the same and the opposite party received the reminder on 5.7.2016 but no reply since has been received.

The complainants also state that after examining the report the complainant no. 1 has been referred to Chennai and the complainant no. 1 went to Chennai Apollo Hospital on November 2016 for his treatment and thereafter the complainant no. 1 again has to go to Chennai for further check up in the month of February 2017 and due to such unforeseen situation the complainants inspite of their best effort could not file the present complaint on early occasion. However, the present complaint has been filed within two years from the date of occurrence of the cause of action and the opposite parties are neglecting to fulfill the actual claim of complainants and without informing about the actual reason why the complainant no. 1 is entitled to get a sum of Rs. 25,000/- out of his claim of Rs. 86,989.20/- and thus, opposite parties made unfair trade practice defrauding the complainant no. 1 from his proper claim.

The complainants also state that the cause of action arose on 26.3.2016 when the complainant no. 1 has filed a claim before the opposite party; on 27.5.2016 when the opposite parties have disbursed a poultry sum of Rs. 25,000/-on 16.6.2016 and the reminder has been given by the complainant no. 1 to pay rest of the claim amount and the same is continuing day by day within the jurisdiction of this Forum.

Complainant filed the complaint petition praying direction upon the opposite parties to pay a further sum of Rs. 61,989.20/- towards residual of the claim and to pay a sum of Rs. 2,00,000/- for physical sufferance and mental agony due to the deficiency in service and unfair trade practice and to pay a sum of Rs. 10,000/- as litigation cost and to give any other relief or reliefs as may deem fit and proper according to law of equity and natural justice.

The opposite party Nos. 1 and 2 have contested the case by filing written version denying inter-alia all the material allegations as labeled against them. These opposite parties submit that the admission of the complainant no. 1 in Upkar Nursing home was not in the direct and personal knowledge of the answering opposite parties until the claim was lodged with the answering opposite parties and the complainant no. 1 did not avail cashless benefit and undergoing the treatment in Upkar Nursing Home, “Preferred Network Provider (PPN)”, which implies he did not even inform the PPN hospital despite being asked as is inadverbially done as one takes admission/ treatment into any hospital and a hospital PPN list invariably is shared with every customer while having a policy along with identity card for insured and on careful scrutiny of the medical reports along with the bills submitted by the complainant no. 1 and in accordance with the Governing policy, Policy terms and conditions, the answering Respondents after deducting Rs. 577/- against Non Taxable Pharmacy and Medicine Charges, Rs. 800/- was deducted against Miscellaneous Charges along with Rs. 60612/- against Excess of Defined/ Ailment Limited and the balance Rs. 25,000/- only was paid into the account of the concerned claimant through National Electronic Fund Transfer (NEFT) on 27.5.2016 and a claim settlement Advice is invariably sent to all claimants after every settlement with a request/ advice to approach the Grievance Cell of the answering respondent at their undergoing office or controlling office and the complainant no. 1 was well explained and even the claim settlement advice clearly cites that his admission was for treatment of Turps/ other disorders of bladder and the customary/ reasonable expenses incurred for the said procedure is Rs. 25,000/- only and therefore only the said amount was paid to him and the bill of Rs. 55,000/- only charged by Prof. Dilip Karmakar is not part of the Hospital Final Bill hence not admissible and not payable.

These opposite parties also submit that the Clause 14 of the Policy Terms and Conditions states that reasonable and customary charges means the charges  for services or suppliers which are the standard charges for the specific provider and consistent with the prevailing charges in the geographical area for identical or similar services taking into account the nature of the illness/ injury involved and for a networked hospital means the rate pre-agreed between Network Hospital and the TPA/ Company for surgical/ medical treatment that is necessary for treating the insured person who was hospitalised.

These opposite parties also submit that the Clause 3.11 of Medical Expenses means those expenses that an insured person has necessarily and actually incurred for medical treatment on account of illness or Accident on the advice of a Medical Practitioner, as long as these are no more than would have been payable if the insured person had not been insured and no more than other hospital doctors in the same locality would have charged for the same medical treatment.

These opposite parties also submit that the Clause 3.4 of Network Provider means hospital or healthcare provides enlisted by an insurer or by a TPA and insurer together to provide medical services to an insured on payment by a cashless facility.

These opposite parties also submit that the Clause 5.7 of Procedure For Availing Cashless Access Services In Network Hospital/ Nursing Home states that

1. Claim in respect of cashless Access Services will be through the TPA/ Insurer provided admission is in a listed hospital in the agreed list of the networked hospitals/ nursing homes and is subject to preadmission authorization and the TPA/ insurer shall upon getting the related medical details/ relevant information from the insured person/ Network Hospital/ nursing home verify that the person is eligible to claim under the policy and after satisfying itself will issue  a pre-authorization letter/ guarantee of payment letter to the Hospital/ Nursing home mentioned the sum guaranteed as payable also the ailment for which the person is seeking to be admitted as inpatient.
2. The TPA/ Insurer reserves the right to deny preauthorization in  case the hospital/ insured person is unable to provide the relevant information/ medial details as required by the TPA/ Insurer. In such circumstances denial of cashless access should in no way be construed as denial of claim. The insured person may obtain the treatment as per his/ her treating doctor’s advice and later on submit the full claim papers to  the TPA/ Insurer for reimbursement within 7 days of the discharge from hospital/ nursing home.
3. Should any information be available to the TPA/ Insurer which makes the claim inadmissible or doubtful requiring investigations, the authorization of cashless facility may be withdrawn. However, this shall be done by the TPA/ Insurer before the patient is discharged from the hospital.

These opposite parties also submit that the complainant no. 1 is not at all entitled to any of the relief as prayed for and the policy issued to the complainants under which the dispute has been raised is governed by Limits of Liability as per various clauses and without any prejudice to whatever has been stated earlier in the written version even admitting without conceding that the company is liable to pay the claim in terms of the contract of insurance issued to the Claimant- Complainant and the maximum quantum of liability shall be subject to terms and conditions of the policy only and as such the answering opposite parties submit categorically on the following points in support of their contentions:-

1. The complainant no. 1 failed to establish any exact cause of action and/ or deficiency of service by the answering opposite parties backed by evidence, he even did not place on record any credible evidence in support of his allegations against the answering opposite parties. Thus, he has failed to prove any cause of action and/or deficiency of service against the answering opposite parties which is also a precondition in cases interpretation of policy terms and conditions, facts as laid down time and again by NCDRF and the Hon’ble Supreme Court from time to time and therefore, complaint petition should be rejected.
2. Allegations with regard to deficiency in service and/ or cause of action are all general in nature, vague and no evidence has been provided to prove the same against the answering opposite parties and hence no grain of truth which are to be considered on merit by this Forum.
3. There is no cause of action for the complainants. The various reliefs sought amounting Rs. 61,989/- towards hospitalisation expenses is not payable as per the policy terms by the opposite parties, further claim of Rs. 2,00,000/- towards compensation along with Rs. 10,000/- towards litigation cost, which is more than the hospitalisation expenses will reveal that the complaint is highly vexatious. Ultimately opposite party nos. 1 and 2 have prayed for rejecting of complaint.

The opposite party No. 3 also contested the case by filing written version denying inter-alia all the material allegations as labelled against him. This opposite party no. 3 submits that the opposite party no. 3 is only a Third Party Administrator for various Insurer including the opposite party nos. 1 and 2 in the instant complaint, acts according to the policy guidelines issued by the Insurer herein opposite party nos. 1 and 2 apart from following the guidelines issued by Insurance Development Authority of India (IRDA) from time to time.

Finally opposite party no. 3 has prayed for rejection of complaint.

The complainants filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties i.e. opposite party nos. 1, 2 filed an affidavit which transpires that the averments of the written version opposite parties rely upon. So, it is needless to discuss.

            Similarly opposite party no. 3 also filed an affidavit which transpires that the averments of the written version opposite parties rely upon. So, it is needless to discuss.

            Complainants and opposite parties filed written notes of argument. The evidence on affidavit and keeping in mind the submissions on behalf of the parties including written notes of arguments of both sides we are passing final order.

            From the discussion herein above, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant no. 1 is entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken conjointly for easiness of the discussions of this case.

1. In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainant herein is a consumer of the opposite party.
2. Both the complainants and the opposite parties are resident/having their office addresses within the district of Hooghly. The claim amount and other expenses which is within Rs. 2,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3.  The main contention of the complainants is that complainant no. 2,                          Subhopratim Banerjee is a mediclaim policy holder of opposite party no. 1, Oriental Insurance Company ltd. with his wife dependant parents as family policy accepted on 13.3.2012.

          It is an undisputed fact that complainant no. 1 being the father of complainant no. 2 who had been undergone an operation at UPKAR Nursing Home, 30D, College Street, Kolkata 700073. It is the specific case of the complainants that the operation charges done on 20.3.2016 by Prof. Dr. Dilip Karmakar being amount of Rs. 55,000/- should be allowed by the insurer, in addition to the post operation treatment of complainant no. 2 including the medicinal charges which were incurred by the complainant no. 2 being the total amount of Rs. 86,998.20/- should be paid by the insurance company adjusting Rs. 25,000/- already paid by the insurance company. That apart complainants have prayed for an order directing the opposite parties to pay a compensation of Rs. 2,00,000/- for physical sufferance of complainant no. 2 and mental agony suffered by complainant no. 2 due to the deficiency in service and unfair trade practice by the opposite parties. Complainants have also prayed for litigation cost of Rs. 10,000/- including other reliefs, if any.

On the other hand, the case of opposite parties as a whole is that though the said Nursing Home (Upkar Nursing Home) is a “Preferred Network Provider” (hereinafter referred to as “PPN”), but surprisingly the complainants did not avail cashless benefit while undergoing the treatment in the said Nursing Home which implies that complainants did not even inform about the “PPN” hospital despite being asked as is invariably done as one takes admission/ treatment into any hospital and a hospital PPN list invariably is shared with every customer while having a policy along with identity card for insured. It is specifically highlighted by the opposite parties that on 27.5.2016 after deducting Rs. 577/- against non taxable pharmacy and medicine charges, Rs. 800/- was deducted against miscellaneous charges along with Rs. 60612/- against excess of defined/ ailment limit. It is also specifically stated by the opposite parties that a claim settlement advice is invariably sent to all claimants after every settlement with a request/ advice to approach the grievance cell of the answering opposite parties at their underwriting office or controlling office. In addition opposite parties have categorically stated that the complainant was well explained and even the claim settlement advice clearly cites that his admission was for treatment of (Trups/ other disorders of bladder) and the customary/ reasonable expenses incurred for the said procedure is Rs. 25,000/- only and accordingly said amount of Rs. 25,000/- has been paid to the complainants and the bill of Rs. 55,000/- only charged by Prof. Dr. Dilip Karmakar of 42 Ekbalpore Road Flat No. 204, Kol. 700023 is not a part of the Hospital final bill which treated, hence not admissible and accordingly not payable.

It is complainants who have submitted the photocopy of discharge summary and certificate relating to patient/ complainant no. 1 and wherein it is appearing diagnosis was done in respect of bladder outlet obstruction. In extreme lower part of the said document it appears that under the heading follow-up/ review: at Subarna Banik ……. (not readable) 47, Ganesh Chandra avenue ……. (not readable) and signature of one doctor with his registration number.

It is fact, that in the discharge summary/ certificate the charge of Prof. Dr. Dilip Karmakar of Rs. 55,000/- is not appearing.

In support of the case of opposite parties, as many as three judgements have been cited on behalf of the opposite parties. In Suraj Mal Ram Niwas Oil Mills (P) Ltd. v. United India Insurance Co. Ltd. (2010 10 SCC 567), in view of that judgement it is argued on behalf of the opposite parties that the rights and obligations are governed by the terms of the contract which have to be strictly constructed, no exception can be made on the ground of equity. Further it is argued on behalf of the opposite parties in connection with the judgment that interpretation of insurance contract and its terms – Strict construction prescribed- Words in an insurance contract, held, must be given paramount importance and interpreted as expressed without any addition, deletion or substitution.

On behalf of opposite parties in another judgement in Reliance General Insurance Co. Ltd. v. Madhavacharya (Revision petition no. 211 of 2009) it is argued by the ld. Counsel of the opposite parties that Hon’ble NCDRC in that revision held that since the insurance between the insurer and the insured is a contract between the parties, the terms of the agreement including applicability of the provision and also its exclusion had to be strictly constructed to determine the extent of the liability of the insurer.

Finally on behalf of opposite parties ld. Counsel cited another judgment M/s. Industrial Promotion & Investment Corporation of Orissa Ltd. v. New India Assurance Company Ltd. & Anr (Civil Appeal No. 1130/2007 dt. 22.8.2016). Ld. Counsel also submitted that keeping the spirit of the appeal that it is well settled law that there is no difference between a contract of insurance and any other contract, and that it should be constructed strictly without adding or deleting anything from the terms thereof.

In fact, complainants did not cite any judgment and they tried to point out their argument holding that on the advice of Dr. Dilip Karmakar complainant no. 1 has been hospitalized at Upkar nursinghome and it is submitted that said doctor being a treating doctor of the complainant no. 1 has operated the said complainant no. 1 on the approval of said Nursing Home as it appears from the discharge summary/ certificate wherein it has been mentioned that there is signature of Dr. Prof. Dilip Karmakar. It is further argued on behalf of the complainants that complainants have paid the doctor’s fee and said doctor gave money receipt to the complainants and not to the Nursing Home. It is also argued that as per Clause 5.6 the complainants are entitled to appoint his own doctor and to get reimbursement of the same by filing the claim within 15 days from the date of discharge and as such according to complainants reason of discarding doctor’s fee of Rs. 55,000/- paid by complainant no. 1 is unjustified and not according to the law. It is also argued on behalf of the complainants that any expenses or expenses which is/ are not covered under the policy, the same has to be borne by insured person himself and in this case as per clause 5.6. (ii) of the policy it has been mentioned that insured person may obtained the treatment as per his/ her treating doctor’s advice and later on submit the full claim papers to the TPA/ insurer within 15 days of discharge from the Hospital/ Nursing Home for consideration and as such complainant no. 1 herein very much entitled to get the fees of doctor who has operated the complainant no. 1 in the said Nursing Home. That apart complainants have submitted that from medical bill of Rs. 55,000/- issued by the said doctor for the operation of complainant no. 1 made by him on 20.6.2016. It is further argued by the complainants that from the discharge certificate and the money receipt given by the said doctor, it is clear therefrom that the said doctor being the doctor-in-charge of said Nursing Home has given the money receipt for operation charges and thus, the said medical bill of said doctor is the part and parcel of medical bill given by said Nursing Home.

Regard being had upon the arguments on behalf of the complainants it may be pointed out that the words in an insurance contract, held must be given paramount importance and interpreted as expressed without any addition, deletion or substitution. To the mind of this Forum the money receipt of Rs. 55,000/- for operation of complainant no. 1 issued by the said doctor cannot be treated as part and parcel of medical bill given by Upkar Nursing Home. Further in the opinion of this Forum the case of complainants is beyond the policy agreement. It is also not clear from the case of complainant that as to why the admission of complainant no. 1/ insured-patient in Upkar Nursing Home was not in the direct personal knowledge of the opposite parties’ immediately after the admission of the complainant no. 1 in the said Nursing Home. Materials on record clearly indicates that after lodging the claim by the complainant no. 1 to the insurance company, the opposite parties have come to learn about the admission and such operation etc.

In view of the above discussion and going through the materials on record this Forum is of the view that complainants’ case bears no merit. Alternatively it can be said that complainants’ case has no leg to stand upon and thus, instant case should be dismissed.

Hence,

it is

ordered

that the complaint case no. 183 of 2017 be and the same is dismissed on contest without cost.

Let copy of this order be supplied free of cost to the parties/ their ld. Advocates on record by hand with proper acknowledgment/ send by ordinary course for information and necessary action.