BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 29.11.2012

Date of Order : 19.03.2016

Shri. Cherian. K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 466/2013

Between

And

O R D E R

V.K. Beenakumari, Member

A brief statement of facts of this complaint is as follows:-

The complainant in this case, a retired officer of Canara Bank, had taken a mediclaim policy from 1^st opposite party Oriental Insurance Company Limited in 2011. The policy Number is 441000/48/2012/768 dated 11.11.2011. On 17.08.2012 the complainant took his 13^th dose of intra vitreal Anti VEGF injection Lucentis in his left eye under local anesthesia as advised by the Doctor in Giridhar Eye Hospital, Kadavanthra. The complainant was undergoing treatment for Occult Choroidal Neovascular membrane in his left eye. After the Lucentis injection the complainant's only useful left eye was bandaged and overnight admission was necessary for monitoring treatment procedure and the complainant was discharged on the very next day on 18.08.2012. An amount of Rs. 34,558/- was incurred by the complainant towards treatment expenses. The complainant made a mediclaim with the 3^rd opposite party – E meditek (TPA) services Limited for the above amount. But the claim was repudiated on 10.09.2012 by the 1^st opposite party oriental insurance company Limited on the ground that “ the procedure undergone by the complainant is within out-patient protocol only “. On repudiation of the claim, the complainant requested the 1^st opposite party to reconsider the matter but in vain. The 2^nd opposite party the regional office also confirmed the decision of the 1^st opposite party. Hence the complainant filed this complaint on the ground that the repudiation of a genuine claim amounted to deficiency in service on the part of the opposite parties. It is submitted that a similar claim of the complainant was allowed by this Forum in order dated 04.11.2011 in CC No. 502/2010 and the said order was confirmed in appeal by the State Commission in Appeal No. 170/2012 dated 06.03.2012. The complainant therefore contended that he is entitled to get the medical expenses reimbursed with 12% interest from the date of claim along with compensation and costs of proceedings. Hence this complaint filed before this Forum.

2. Notice of this complaint was issued to all the three opposite parties from this Forum and the opposite parties appeared before this Forum in response to the notices received by them and filed their version contending interalia as follows:-

Version of opposite parties 1 and 2 :- The complaint is not maintainable before this Forum as it has no jurisdiction. The complainant is residing at Thrissoor and he had availed the policy from Calicut and hence this Forum has no territorial jurisdiction to consider this complaint. It is submitted that the complainant is a beneficiary under the group individual mediclaim policy issued by Oriental Insurance. The complainant was administered with an injection for treatment of his left eye for age related muscular degeneration on 17.08.2012. As the said procedure of treatment is not required with admission in the hospital and need to be done only as out-patient, his claim was rejected on the said ground by the opposite parties. It is further submitted that as per the conditions of the policy, reasonable expenses alone can be granted and that too only in cases where hospitalization is required for the treatment of the insured. It is submitted that there was no deficiency in service on the part of the 1^st and 2^nd opposite parties and the complainant is not entitled to any relief prayed for since the complaint is not maintainable and the claim of the complainant is beyond the scope of the mediclaim policy and the opposite parties had rightly repudiated the mediclaim of the complainant. It is therefore prayed that the complaint may be dismissed with costs to the opposite parties.

3. This complaint was filed by the complainant on 27.06.2013. During the proceedings of this case, the complainant Shri K.R. Ramakrishnan died on 01.02.2015 and his wife Smt. Karthyayani, the son Shri K.R. Gopinath and his daughter Miss. K.R. Rema were permitted to be impleaded as additional complainants 2 ,3 and 4 vide order of this Forum in I.A. No. 385/2015 dated 22.10.2015 since they are the legal heirs of the complainant late K.R. Ramakrishnhan.

4. The evidence in this case consisted of the proof affidavit filed by Shri K.R. Ramakrishnan and the documentary evidences marked as Exts. A1 to A7 on the side of the complainant. Neither oral or documentary evidence furnished by the opposite parties. Heard both sides.

5. On the pleadings, the following issues were settled for the consideration of this Forum :

i) Whether the complaint is maintainable before this Forum ?

ii) Whether the complainant has proved deficiency in service

on the part of the opposite parties ?

iii) Whether the complainant is entitled to get the mediclaim

lodged with the opposite parties ?

iv) Whether the opposite parties are liable to pay compensation

and costs of the proceedings to the complainant/to the legal

heirs of the complainant ?

6. Issue No. (i) : It is contended by the opposite parties that the complaint is not entertainable before this Forum for want if jurisdiction. It is submitted by the opposite parties that the complainant is a resident of Thrissoor District and the policy was procured by the complainant from Calicut. Hence the CDRF, Ernakulam has no jurisdiction to entertain this complaint section II of the Consumer Protection Act, 1986 describes the jurisdiction of the District Forum and Clause 2 of Section II describes the territorial jurisdiction of the District Forum as below.

“ Sec. 11(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,

a) The opposite party or each of the opposite parties,

where there are more than one, at the time of the

institution of the complaint, actually or voluntarily

resides or carries on business or has a branch

office or personally works for gain or

b) any of the opposite parties, where there are more

than one at the time of the institution of the compl-

aint, actually or voluntarily resides or carries on

business or has branch office or personally works

for gain provided that in such case either the

permission of the District Forum is given or the

opposite parties who do not reside or carry on

business or have a branch office or personally

work for gain, as the case may be, acquiesce in

such institution or

c) the cause of action, wholly or in part, arises ”.

In the instant case the opposite party – Oriental Insurance Company carries on its business in its Regional Office in Ernakulam District and thus this Forum has ample jurisdiction to entertain this complaint as envisaged in sub clause (2) to section 11 of the Consumer Protection Act, 1986. Thus the contention of the opposite parties this Forum has no jurisdiction to entertain this complaint is found not admissible hence rejected. This issue is decided in favour of the complainant.

7. Issue Nos. (ii) and (iii) :- The complainant contended that the mediclaim lodged with the opposite party – Oriental Insurance Company was repudiated by the opposite party on flimsy grounds and the repudiation of the genuine claim by the opposite parties amounted to deficiency in service on the part of the opposite parties as well as unfair trade practice practised by the opposite parties. The complainant had taken a mediclaim policy from the Divisional Office No. 1 Calicut of the opposite party – Oriental Insurance Company with Policy No. 4410000/48/2012/768 dated 11.11.2011 as evidenced by Ext. A1 mediclaim policy for the period from 12.11.2011 to 11.11.2012. Ext. A2 series (1) claim Forum would go to show that the complainant had claimed an amount of Rs. 34558/- as reimbursement of medical expenses incurred by him for intra vitreal Lucentis injection procedure. The complainant was admitted to the hospital Giridhar Eye Institute, Kadavanthra, Ernakulam on 17.08.2012 and discharged on 18.08.2012. The complainant had been insured under the mediclaim policy of Oriental Insurance Company since 1992 and as per Ext. A2 series No. (8) the final bill amount is Rs. 34540/- and the complainant had claimed Rs. 34558/- as per Ext. A2 series No. (1) claim Forum. But the above claim was repudiated or not entertained by the Oriental Insurance Company Limited vide Ext. A3 letter of repudiation wherein it is stated that “ the treatment taken is for muscular De-Generation and the procedure adopted is injection of Lucentis, that this procedure involved is within out-patient protocol only therefore the claim is repudiated “. The complainant K.R. Ramakrishnan vide Ext. A4 letter dated 08.02.2013 intimated the opposite party – Insurance company that similar treatment as in patient at the very same hospital was considered by the CDRF, Ernakulam and the case was decided to against the United India Insurance Company. The complainant therefore requested to reconsider the claim of the complainant. But on re-consideration of the case, the regional insurance company limited, Ernakulam had intimated vide Ext. A5 letter that they find no grounds to interfere with the decision taken by the Divisional Office – I, at Calicut and advised the complainant to file appeal before the Insurance Ombudsman if aggrieved by the above decision. Thereafter the complainant filed this complaint before this Forum. The only reason for repudiating the mediclaim is that the intre vitreal Lucentis injection procedure is within out patient protocol only. The very same issue was earlier considered in Ext. A6 order of this Forum in CC No. 502/2010 dated 04.11.2011. In the above case it was categorically explained in the certificate issued by Dr. Giridhar why the patient happened to stay for more than 24 hours in the hospital, that “ since the patient is one eyed and the only useful left eye is being bandaged after injection, overnight admission is necessary for undergoing the said procedure and monitoring for 24 hours”. In the earlier case in CC 502/2010 it was observed by this Forum that “ the determination of the modalities of treatment is the prerogative of the doctor who treated the patient. Therefore this Forum did not find any merit in the contention of the opposite party Insurance company that the hospitalization for 24 hours was unwarranted in the case and the opposite party – United India Insurance Company was directed to pay Rs. One lakh along with 9% interest per annum form the date of the order till realisation “. The above decision of the C.D.R.F.,Ernakulam was confirmed in Appeal No. 170/2012 dated 06.03.2012 by the State Commission, Trivandrum. In the instant case it is brought out in evidence that the complainant K.R. Ramakrishnan who aged 82 years at the time of undergoing intra vitreal Lucentis injection procedure and monitoring for 24 hours is required since the complainant's right eye was having no vision and the left eye having vision was bandaged after the Lucentis injection. Therefore the decision of the Doctor who treated the complainant in the instant case to treat the patient as in patient is decisive and it is the prerogative of the Doctor to decide the modalities of treatment. Thus the repudiation of the claim by the opposite party – oriental insurance company amounted to deficiency in service on the part of the opposite parties and the complainant V.R. Ramakrishnan has eminently proved by the evidences interalia that the opposite parties had offered a deficient service to the complainant. We also find that the complainant or his legal heirs are entitled to get the entire claim of Rs. 34,558/-.

8. Issue No. (iv) : The complainant had rightly intimated the opposite party about the earlier decision of this Forum wherein similar claim was allowed by the CDRF, Ernakulam and State Commission, Trivandrum. Even then the genuine claim of the complainant was repudiated without any valid reason. The above act of the opposite parties amounted to deficiency in service unfair trade practice on their part. In view of the above findings we find that the complainant is entitled to get compensation for the mental agony suffered by him. He is also entitled to get costs of the proceedings since he was unnecessarily dragged to this Forum to redress his genuine grievance.

In the result, this complaint is allowed and the opposite parties are directed as follows:-

1. The opposite parties shall process the Insurance Claim Forum submitted by the complainant K.R. Ramakrishnan, in tune with the observations of this Forum in the paragraphs supra and to reimburse the entire mediclaim of Rs. 34,558/- with 12% interest per annum from the date of claim i.e. from 10.09.2012 till the date of realisation of the above amount to the complainant .

2. The opposite parties shall also pay Rs. 15,000/- to the complainant towards compensation for the mental agony suffered by the complainant.

3. The opposite parties shall pay Rs. 2000/- towards the costs of the proceedings.

4. Since the complainant K.R. Ramakrishnan is no more, the above amounts shall be paid to his legal heirs namely additional complainants 2, 3 and 4 within a period of 60 days from the date of receipt of a copy of this Order.

Pronounced in the open Forum on this the 19^th day of March, 2016.

Sd/- V.K. Beena Kumari, Member. Sd/- Cherian. K. Kuriakose, President.

Sd/- Sheen Jose, Member.

Forwarded / By Order

Senior Superintendent

Date of Despatch of the Order :

By Hand / By Post :

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :- Nil