BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.163 of 2020

      Date of Instt. 20.03.2020

      Date of Decision: 30.01.2024

Anita Khanna wife of Shri Rakesh Khanna Aged 60 years resident of 415, Guru Teg Bahadur Nagar, Jalandhar.

..........Complainant

Versus

1.       The Oriental Insurance Co. Ltd. Branch Office-II, SCO-50,      Jeevan Raksha, PUDA Complex, Opp. Tehsil Complex,       Jalandhar City Through its Branch Manager.

2.       The Oriental Insurance Co. Ltd. Head Office, Oriental House PB       No.7037, A-25/27, Asaf Ali Road, New Delhi Through its        Managing Director.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)                                          Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. Ishar Singh, Adv. Counsel for Complainant.

                   Sh. A. K. Arora, Adv. Counsel for OPs No.1 and 2.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the husband of the complainant had purchased one Medi-Claim Insurance Policy bearing no.233108/48/2018/3657 on 19.3.2018 valid till midnight of 18.3.2019. As per the said policy the complainant is legally entitled for reimbursement of reasonable and necessary expenses of hospitalization incurred for illness/disease contracted during the policy period upto the limit of sum insured in the policy to the extent of Rs.5,00,000/-. The complainant was admitted in Patel Hospital on 14.11.2018 for treatment of PEMPHIGUS VULGARIS and was discharged on 15.11.2018. Intimation in this regard was duly given to the OP No.1. As per advice of the doctors concerned she was again admitted in the Patel Hospital, Jalandhar on 30.11.2018 and was discharged on 1.12.2018 for the treatment of same disease. Intimation in this regard was also given to the OP No.1. The complainant lodged the claim for Rs.69,318/- on 16.11.2018 for medical expenses incurred for treatment on 14.11.2018 and for Rs.54,458/- on 3.12.2018 for medical expenses incurred for the treatment made on 30.11.2018 for necessary reimbursement. Instead of sanctioning the claim, the OP No.1 returned the claim for treatment dated 14.11.2018 vide letter dated 21.5.2019 and the other claim for treatment dated 30.11.2018 on 22.5.2019 after lapse of six months on flimsy grounds which are mentioned below :-

a) RITUXIMAB INFUSION can be managed on OPD basis and 24 hours hospitalization is not required.

b) IMMUNOMODULATOR DRUGS are not payable as per policy terms.

                   Both these objections raised by OP No.1 are purely vague, false, against the terms and conditions of policy and are not having any legal sanctity in the eyes of law and are not binding in the case of complainant. The disease known as PEMPHIGUS VULGARIS is a rare autoimmune disease that causes painful blistering on the skin and mucous membranes. The treatment of the said disease is made with inj. Rituximab IV infusion slowly over 8-10 hours rituximab is a biological agent that can be associated with infusion reaction including anaphylactic reactions cardiovascular adverse reactions and emergence of various infections. The patient had to be kept under supervision post infusion in the hospital to look for development of any adverse reactions. As such the patient was kept in the hospital for more than 24 hours as per the advice of doctor treating her. The IMMUNOMODULATOR DRUGS are not served to the complainant as alleged and both the claims have been repudiated on the basis of above said vague objections. Sufficient proof has been given by complainant at the time of lodging of the claim but the claim has not been sanctioned by OP No.1 arbitrarily, wrongly and without any reasonable and sufficient cause. The complainant approached OP No.1 and requested many a times for sanction of the claims and explained that the claim papers are perfect and are covered as per the terms and conditions of the policy. The above policy has been got renewed on 19.3.2019 valid upto 18.3.2020. The medical expenses claimed by complainant have been necessarily and actually incurred for medical treatment and the complainant remained admitted in the hospital for more than 24 hours as per the advice of the doctors concerned treating her. Patel Hospital where the treatment was undertaken is well reputed hospital and its certification for keeping the patient more than 24 hours cannot be doubted. Both the claims of complainant are justified and are based on merits and comply with the terms and conditions of the policy which have been wrongly repudiated on false and flimsy grounds. The complainant has suffered monetary and mental agony due to misdeeds and illegal acts of OP No.1 and even otherwise the complainant has got issued a legal notice dated 15.11.2019 upon the OPs, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to settle both the claims for Rs.69,318/- and Rs.54,458/- and to pay the said amount alongwith interest at the rate of 12 % per annum amounting to Rs.18,000/- from the date of claim till 13.3.2020, respectively as well as damages to the tune of Rs. 1,00,000/- (total amount comes to Rs.2,41,796/-) to the complainant for causing undue harassment, mental tension, litigation cost and financial loss by resorting to unfair trade practice and the rejection of the claims on false and flimsy grounds, in the interest of justice, equity and fairplay.

2.                Notice of the complaint was sent to the OPs, who filed its joint written reply and contested the complaint by taking preliminary objections that there is no deficiency of service or unfair trade practice on the part of answering OPs and that being so the present complaint is not maintainable. It is further averred that Smt. Anita Khanna complainant was admitted in Patel Hospital Jalandhar as a case of Pemphigus Vulgaris for which Rituximab therapy was given to the complainant both the times. Rituximab is a biological monoclonal therapy and admission for Rituximab infusion is not payable since it can be managed on OPD basis and also it does not fall in day care procedure list as 24 hours hospitalization is not required for the same. Further Rituximab is immunomodulator drug, for which the "expenses/ reimbursement is not payable as per clause 4.21 of the policy of insurance. Thus both the claims of the complainant were repudiated under policy exclusion clauses 2.5 and 4.21. On merits, the factum with regard to taking insurance policy by the complainant and admission of the complainant in Patel Hospital is admitted and it is also admitted that Rituximab Therapy was given to the complainant. It is also admitted that the complainant lodged the claim with OP and the same was repudiated, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. .

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for both the parties very minutely.

6.                The purchase of medi-claim insurance policy bearing No.233108/48/2018/3657 has been admitted. It has also been admitted that the policy was valid from 19.03.2018 till midnight of 18.03.2019. Copy of the insurance policy has been proved as Ex.C-1. It is not disputed that the complainant was admitted in Patel Hospital, Jalandhar as a case of PEMPHIGUS VULGARIS twice. She was admitted on 14.11.2018 and was discharged on 15.11.2018 and for the second time, she was admitted in the Patel Hospital on 30.11.2018 and was discharged on 01.12.2018 for the treatment of the same disease. The complainant has produced on record the documents relating to the expenditure made by him in the hospital and treatment record Ex.C-6 to Ex.C-11 and Ex.C-13 to Ex.C-16. The complainant gave intimation of the admission to the OP vide Ex.C-2 and Ex.C-3 alongwith the documents i.e. copies of the bills vide email to the OP as per the message Ex.C-3. The claim was lodged by the complainant for medical expenses incurred by the complainant alongwith medical bills vide Ex.C-5 to Ex.C-16. Both the claims were rejected on the same ground, vide letters Ex.C-17 and Ex.C-18 dated 22.05.2019 on the ground, which reads as under:-

1.       Rituximab is a biological monoclonal therapy.

2.       Admission only for Rituximab infusion is not payable as it can be     managed on OPD basis.

3.       Also it does not fall in daycare procedure list and 24 hrs           hospitalization is not required for the same.

7.                The repudiation letters Ex.C-17 and Ex.C-18 shows that the claim of the complainant was repudiated mainly on the ground that confinement/admission of the complainant was not required at a hospital, but this observation of the OPs is wrong and illegal as as per certificate issued by the doctor Ex.C-19, Smt. Anita Khanna was admitted for PEMPHIGUS VULGARIS and she was treated with injection Rituximab IV infusion slowly over 8-10 hours. It has further been certified by the doctor that ‘Rituximab is a biological agent that can be associated with infusion reactions including anaphylactic reactions, cardiovascular adverse reactions and emergence of various infections. Patient had to be kept under observation post infusion in the hospital to look for development of any adverse reactions.’ As is evident from Ex.C-4/C-19 and the Literature filed by the OP as Ex.OP1-2/1 and Ex.OP1-2/3 that ‘Rituximab is given in hospital, through a drip into a vein. This is known as an intravenous infusion. This is done by a doctor or nurse, so they can monitor for any side effects while taking rituximab.’ The complainant was suffering from PEMPHIGUS VULGARIS, which is a rare long term autoimmune disease that causes painful blisters and erosions on the skin and mucous membranes. For the treatment of this PEMPHIGUS VULGARIS, Rituximab injections were given and administered. As per the certificate of the doctor and the literature, it is necessary to monitor the patient in order to avoid any side effect. In such circumstances, it was necessary to keep her in the hospital for one day for observation, so that any reaction including anaphylactic reaction, cardiovascular adverse reaction and emergence of various infections with infusion reactions can be taken care of. The doctor has specifically certified that she had to be kept under observation post infusion in the hospital to look for development of any adverse reaction. So, in such circumstances, in order to avoid any adverse reaction, her admission was necessary.

8.                The OP has relied upon the insurance policy Ex.OP1-2/1 with schedule. Perusal of the policy shows that this policy Ex.OP1-2/1 is having 1/455/13-14 and this is valid from 19.03.2018 to 18.03.2019. The schedule relied upon by the OP is PNB-Oriental Royal Mediclaim Policy Schedule 2017 policy, whereas in Ex.OP1-2/1 and the policy Ex.C-1 is having number 1/454/13-14. The complainant has filed on record the schedule also alongwith application for additional evidence which is the schedule of 2013-14. Perusal of Ex.C-17 shows that the claim has been repudiated considering the exclusion clauses 2.5 and 4.2(1), whereas in the schedule relied upon by the OPs nowhere finds any exclusion clause of 2.5. Clause 4.2(1) of this schedule is regarding the treatment in respect Sleep Apnoea and immune modulator drugs for cancer treatment, but the complainant was not cancer patient nor did she receive any treatment for cancer nor these rules i.e. policy schedule is applicable to the complainant. It has been held by the Hon'ble Supreme Court in (2020) 1 CPJ 93 in case titled as “Saurashtra Chemicals Ltd. Versus National Insurance Co. Ltd.”, that ‘an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation’. Even as per the insurance policy Ex.C-1, the policy schedule of 13-14 is applicable and not of 2017 as relied upon by the OP. Even the policy of 13-14 clause 2(1) is not exclusion clause, it deals with any kind of service charges and surcharges unless payable to the Govt. Authority levied by the hospital. The complainant has alleged that he was never made aware of any exclusion clause nor the schedule was ever received by him. He got this copy from the insurance company and produced on record alongwith application for additional evidence. No terms and conditions have been filed on record by the OP to show that these terms and conditions were well within the knowledge of the complainant, whereas the complainant has alleged that he was never supplied with any terms and conditions. It has been held in a case titled as “Bajaj Allianz General Insurance Co. Ltd. Vs. Rajwant Kaur and Other”, 2021 (3) CLT 540 (CHD) that the onus is on the appellant insurance company to prove that it provided the terms and conditions of the policy to the complainant and the same were in her knowledge. It has been held in a case titled as “National Insurance Co. Ltd. & Ors Vs. M/s Saraya Industries Ltd”, 2020 (1) CLT 278 (NC) that it is the duty of the insurance company to supply all the terms and conditions of an insurance policy to the policy holder-there cannot be any presumption under law on the terms and conditions. It has been held in a case titled as “Bhanwar Lal Vishnoi Vs. Oriental Insurance Co. Ltd.”, cited in 2017 (1) CLT 401, that the insurance co. has to prove that the exclusion clause under which the claim is sought to be repudiated was communicated to the complainant. Since the OP has relied upon the policy schedule of 2017, which is clear cut not applicable, therefore, for proper adjudication, the documents sought to be produced by way of additional evidence, vide application are being considered. As discussed above, even 4.2(1) rule of this policy no.13-14 is not applicable, so the OP itself is not aware under which clause they are going to repudiate the claim. Therefore, the contention that 24 hours hospitalization is not required for such patient, is not tenable as the OPs are not medical experts nor any medical opinion has been filed on record by the OPs to prove that the procedure for administrating Rituximab Injection is an OPD procedure and it does not require any monitoring and any 24 hours hospitalization to rebut the certificate of the doctor Ex.C-4/C-19, nothing has been proved by the OPs.

9.                In view of the above detailed discussion, the repudiation letters are wrong, illegal and are hereby set-aside and the complaint of the complainant is partly allowed. The OPs are directed to pay both the claims for Rs.69,318/- and Rs.54,458/- alongwith interest @ 6% per annum from the date of submission of the claim, till its realization. Further, OPs are directed to pay a compensation of Rs.15,000/- to the complainant for causing mental tension and harassment and Rs.5000/- as litigation expenses. The compliance of the order be made within 45 days from receipt of copy of this order. This complaint could not be decided within stipulated time frame due to rush of work.

10.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

30.01.2024         Member                          Member           President