Order by:
Sh.Amrinder Singh Sidhu, President
- The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he is government employee and was duly insured/ registered under Punjab Health Insurance Scheme under policy No. 231102/48/2016/769 vide ID card No.MD15-09417088147 issued by Opposite Parties No.1 to 3 for any kind of his treatment as well as treatment of his family members during the period w.e.f. 01.01.2016 to 31.12.2016. Further alleges that during the above said period, son of the complainant went mentally ill and the complainant got his treatment from two different hospitals i.e. Midha Neuropsychiatry & De-addiction Hospital, Bathinda (for degenerative disease of Nervous System) for the period w.e.f. 25.06.2016 to 01.07.2017 and from Christian Medical College and Hospital (CMC HP) Ludhiana (for Bipolar Disorder) for the period 02.07.2016 to 06.07.2016. On the treatment of his son namely Arvinderpal Singh, the sum of Rs.23001/- and Rs.19165/- total amounting to Rs.42,166/- was incurred by the complainant. Thereafter, for the reimbursement of the said medical bills, the complainant filed two different claims vide claim No. MDI0067457 of Rs.23001/- and claim Nol.MDI0067426 of Rs.19165/-, but the Opposite Parties repudiated the claim of the complainant vide repudiation dated 30.12.2016 on the ground that as per para No.4 of the notification No.21/28/12-5HB5/268 dated 20.10.2015, it has been specified that no reimbursement will be available for the treatment in Punjab and Chandigarh where cashless treatment is available. In view of this, there is deficiency in service on the part of the Opposite Parties and the Complainant has suffered mental tension, harassment as well as financial loss. Vide instant complaint, the complainant has sought the following reliefs.
- The Opposite Parties may be directed to reimburse the amount of Rs.42,166/- according to the norms of the policy + Rs.50,000/- on account of compensation for mental and physical harassment and Rs.5,000/- as costs of counsel fee alongwith costs of complaint.
2. Upon notice, Opposite Party No.1 appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the complaint is not maintainable; that there is complicated questions of law and facts involved and the same can not be adjudicated in summary proceedings, therefore this District Consumer Commission has got no jurisdiction to try and decide the present complaint. The claim of the complainant was repudiated under para No.4 of the Notification No. 21/28/12-5BH5/268 dated 20.10.2015 of the Government of Punjab, Department of Health & Family Welfare on the ground that date of inception 01-Jan-2016 patient treated for DEGENERATIVE DISEASE OF NERVOUS SYSTEM FROM 25-Jun-2016 to 01-Jul-2016 and hence the claim is not admissible as per the policy cause because as per the para no.4 of the notification, it has been specified that no reimbursement will be available for the treatment in Punjab and Chandigarh where cashless treatment is available, therefore the claim was repudiated. On merits, it was admitted that the sum insured was Rs.3 lakhs per family on floater basis and the said details of scheme were made available by State Government in Punjab Domain. Moreover, as per clause 24 of the tender, this District Consumer Commission has got no jurisdiction to try and decide the present complaint as there is specific provision regarding dispute between beneficiary and Healthcare Provider/ Care Provider and the TPA/ Insurance Company shall be referred to District Level Grievance Redressal Commission. Opposite Party No.1 took up the same and similar pleas as taken up by them in the preliminary objections. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with special costs has been made.
3. Opposite Party No.2 and 3 filed their separate replies taking certain preliminary objections therein inter alia that the complaint is not maintainable and filed the same and similar reply as filed by Opposite Party No.1 and a prayer for dismissal of the complaint with special costs has been made.
4. In order to prove his case, complainant tendered into evidence his affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C20 and closed the evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties tendered into evidence the affidavit of Sh.Sukhwinder Singh Ex.OP1/1 alongwith copies of documents Ex.OP1/2 to Ex.OP1/5, affidavit of Sh.Rajesh Attri, Deputy Medical Commissioner Ex.OP3/1 and thereafter, the Opposite Parties closed their respective evidence.
6. We have heard the ld. counsel for the parties and have carefully gone through the evidence on record.
7. Ld.counsel for the complainant has reiterated the averments as narrated in the complaint and contended that first of all, the written version filed on behalf of Opposite Parties has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Further contended that the complainant is government employee and was duly insured/ registered under Punjab Health Insurance Scheme under policy No. 231102/48/2016/769 vide ID card No.MD15-09417088147 issued by Opposite Parties No.1 to 3 for any kind of his treatment as well as treatment of his family members during the period w.e.f. 01.01.2016 to 31.12.2016. Further alleges that during the above said period, son of the complainant went mentally ill and the complainant got his treatment from two different hospitals i.e. Midha Neuropsychiatry & De-addiction Hospital, Bathinda (for degenerative disease of Nervous System) for the period w.e.f. 25.06.2016 to 01.07.2017 and from Christian Medical College and Hospital (CMC HP) Ludhiana (for Bipolar Disorder) for the period 02.07.2016 to 06.07.2016. On the treatment of his son namely Arvinderpal Singh, the sum of Rs.23001/- and Rs.19165/- total amounting to Rs.42,166/- was incurred by the complainant. Thereafter, for the reimbursement of the said medical bills, the complainant filed two different claims vide claim No. MDI0067457 of Rs.23001/- and claim Nol.MDI0067426 of Rs.19165/-, but the Opposite Parties repudiated the claim of the complainant vide repudiation dated 30.12.2016 on the ground that as per para No.4 of the notification No.21/28/12-5HB5/268 dated 20.10.2015, it has been specified that no reimbursement will be available for the treatment in Punjab and Chandigarh where cashless treatment is available and as such, there is deficiency in service on the part of the Opposite Parties
8. On the other hand, ld.counsel for Opposite Parties has repelled the aforesaid contention of the ld.counsel for the Complainant on the ground that that there are complicated questions of law and facts involved and the same can not be adjudicated in summary proceedings, therefore this District Consumer Commission has got no jurisdiction to try and decide the present complaint. The claim of the complainant was repudiated under para No.4 of the Notification No. 21/28/12-5BH5/268 dated 20.10.2015 of the Government of Punjab, Department of Health & Family Welfare on the ground that date of inception 01-Jan-2016 patient treated for DEGENERATIVE DISEASE OF NERVOUS SYSTEM FROM 25-Jun-2016 to 01-Jul-2016 and hence the claim is not admissible as per the policy cause because as per the para no.4 of the notification, it has been specified that no reimbursement will be available for the treatment in Punjab and Chandigarh where cashless treatment is available, therefore the claim was repudiated. On merits, it was admitted that the sum insured was Rs.3 lakhs per family on floater basis and the said details of scheme were made available by State Government in Punjab Domain. Moreover, as per clause 24 of the tender, this District Consumer Commission has got no jurisdiction to try and decide the present complaint as there is specific provision regarding dispute between beneficiary and Healthcare Provider/ Care Provider and the TPA/ Insurance Company shall be referred to District Level Grievance Redressal Commission and hence there is no deficiency in service on the part of the Opposite Parties.
9. Perusal of the contention of the ld.counsel for the shows that the written version filed on behalf of Opposite Parties has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Parties No.1 and 2 is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. In this regard, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
10. For the sake of arguments, for the time being, if the written reply filed by Opposite Parties is presumed to be correct, the plea raised by Opposite Parties is that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court and this District Consumer Commission has no jurisdiction to try and decide the present complaint. So far as the objection that complicated question of the fact is involved as such the Insured be relegated to go before Civil Court, is concerned, The Consumer Protection Act, 1986 (as amended upto date) (hereinafter referred to as the Act) was enacted with object to provide for better protection of the interests of the consumers and for that purpose, to make provision for the establishment of consumer council and other authorities for settlement of consumer disputes and other matter connected therewith. Section 13 (4) (as amended upto date) confers same powers upon the authorities under the Act, which are vested in Civil Court under Code of Civil Procedure, 1908, while trying a suit in respect of (i) The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, (ii) the discovery and production of any document or other material object producible as evidence, (iii) the reception of evidence on affidavits, (iv) the requisitioning of the report of the concerned analysis or test the appropriate laboratory or from other relevant source, (v) issuing of any commission for the examination of any witness and (vi) any other matter which may be prescribed. The authorities are conferred jurisdiction to decide the issue of “unfair trade practice” which has been defined under Section 2 (r) (as amended upto date) of the Act. This definition is similar to the definition of “fraud” as given under Section 17 of Indian Contract Act, 1872. From these provisions it is clear that this Commission can hold a full trail as held by civil court or adopt summary procedure for decision of any complaint. Under the Act, although the jurisdiction of the authorities is limited to consumer complaint, but while deciding such complaint no limit has been fixed for adjudicating of the dispute. Three Judges Bench of Supreme Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (paragraph-7) held that the object and purpose of the Act is to render simple, inexpensive and speedy remedy to the consumer with complaint against defective goods and deficient services and the benevolent piece of legislation, intended to protect a large body of consumer from exploitation. Consumer Forum is an alternate Forum, established under the Act, to discharge the function of Civil Court. Under the Act, the consumers are provided with an alternative efficacious and speedy remedy. As such the Consumer Forum is an alternative forum established under the Act to discharge the functions of Civil Court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the Civil Court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected (In paragraph-12). Similar view has been taken in Amar Jwala Paper Mills Vs. State Bank of India, (1998) 8 SCC 387, CCI Chambers Coop. Hsg. Society Ltd. Development Credit Bank Ltd. (2003) 7 SCC 233. Recently, Hon’ble National Commission, New Delhi in CC No. 101 of 2009 titled as mahalaxmi Dyes & Chemicals Ltd. Vs. New India Assurance Company Limited decided on 07.09.2021 also held so. Hence, this District Consumer Commission is not convinced with the aforesaid contention of the ld.counsel for the Opposite Parties.
11. The only plea raised by Opposite Parties is that Manohar Lal complainant was covered under Punjab Government Employees & Pensioners Health Insurance Scheme (PGEPHIS) bearing Policy No.231102/48/2016/769 issued for the period w.e.f. 01.01.2016 to 31.12.2016. The claim processing TPA of this policy was MD India and said agency confirmed that Midhha Hospital Ludhiana and CMC Ludhiana are not in the empanelled list of MD India TPA, so the claim of the complainant is not payable under para No.4 of the Notification No. 21/28/12-5BH5/268 dated 20.10.2015 of the Government of Punjab, Department of Health & Family Welfare. But we do not agree with the aforesaid contention of the Opposite Parties. It is not disputed that the complainant got treatment of his son from Midhha Hospital Ludhiana and CMC Ludhiana which are the specialty hospitals. Specialty hospitals are established for treatment for specified ailments and services of doctors specialized in a discipline are availed by patents only to ensure proper, required and safe treatment and the right to medical claim cannot be denied merely because the name of the hospital is not included in the government order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant and actually taken treatment and the factum of treatment is supported by records duly certified by doctors/ hospitals concerned. Once, it is established, the claim can not be denied on technical grounds as found by the Opposite Parties. Hon’ble Madras High Court in W.P. No.4980 of 2006 (E. Ramalingam v. The Director of Collegiate Education) decided on 26.06.2006 held as under:
“8. In regard to the reasons as to the non inclusion of the Hospital in Government Order for denial, this Court cannot brush aside the advancement in modern medical treatment. Speciality Hospitals are established for treatment for specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive the beneficial order of the Government, solely on the ground that the said Hospital is not included in the Government Order. It cannot be so, as the Government Order should be read keeping the purpose for which the same was issued. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds as found in the impugned order. Having regard to the above lacunae in the earlier Government Order and issuance of subsequent Government Order including not only the treatment but also the hospital, I am of the view that the petitioner is entitled to claim reimbursement.
Similar law was laid down by the Hon’ble Delhi High Court in case reported as Narendra Pal Singh v. Union of India & Ors. 1999 IIIAD Delhi 769, 79 (1999) DLT 358, 1999 (50) DRJ 551, ILR 1999 Delhi 315.
Not only this, our own Hon’ble State Commission Punjab Chandigarh in First Appeal No. 234 of 2021 decided on 22.10.2021 in case titled as General Manager, Telecom Vs. Jaswant Rai has also held so.
12. Furthermore once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the Opposite Parties have denied the grant of medical reimbursement to the Complainant and forcing her to approach this District Commission. To support her version, the Complainant has relied upon the judgement of Hon’ble Supreme Court of India in case titled Shiva Kant Jha Vs. Union of India in Civil Writ Petition No. 694 of 2015, decided on 13.04.2018 has held that the government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities even if they receive treatment at non-empanelled hospital and no fetters can be placed on his rights.
13. In such a situation the repudiation made by Opposite Party regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
14. In view of the above discussion, we are of the opinion that the Opposite Parties have wrongly and illegally repudiated the claim of the complainant. Consequently, we allow the complaint and the Opposite Parties No.1 and 2 are jointly and severally directed to reimburse the medical billS of the Complainant amounting to Rs.42,166/- (Rupees forty two thousands one hundred sixty six only) alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 15.10.2018 till its actual realization. Opposite Parties No.1 and 2 are also directed to pay the lump sum compensation to the complainant to the tune of Rs.10,000/- (ten thousands only) on account of harassment, mental tension and litigation expenses. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
15. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated: 14.12.2021.
