SMT.MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 35 of the Consumer Protection Act 2019 for an order directing the OPs to pay Rs.190,000/- as the medical expenses along with Rs.2,00,000/- as compensation for mental agony caused to the complainant and Rs.50,000/- as litigation cost to the complainant for the deficiency of service and unfair trade practice on the part of OP’s.
The brief of the complaint :
The complainant had taken a policy of the OPs on believing the assurance made by the OP’s agent and the terms and conditions of the policy described the scope and viabilities of the health care scheme of insurance policies provided by the OPs. The complainant was covered with policy vide No.P/181322/01/2018/004603 for a period of 22/3/2018 to 21/3/2019. During the validity period of the scheme the complainant sustained a muscular injury due to fall on the courtyard of the complainant’s house at Vellad on 23/12/2018. Then the complainant was brought to the nearby St.Joseph Hospital,Karuvanchal and advised by the doctor the complainant took an X-ray from the same hospital ,she was advised to have 3 days medication. Even though medication started on the very same night the complainant did not get any relief from pain. Again on 9/1/2019 the complainant was brought to the Orthopaedic surgeon of the same hospital and as advised by him an MRI scan was taken on 10/1/2019 from Dr.Shajis’ MRI Scan clinic Kannur. Then it was diagnosed that the anteroinferior labral tear bankrat lesion injuries exist. Then the complainant consulted the orthopaedic surgeon at St.Joseph Hospital Karuvanchal and he advised that the only available remedy was to get an operation. So this complainant consulted Dr.Schiller Jos, Senior consultant Sports Medicine and Arthroscopy on 12/1/2019 at Baby Memorial Hospital Kozhikode and verified the MRI scan report and after examination he opined that to avoid the unaffordable pain and to get speedy recovery the only solution was to get an operation. As a pre-operative treatment doctor suggested the complainant to have one month physiotherapy and advised to take admission on 19//2/2019 for operation. Then the complainant was admitted in the hospital on 19//2/2019 itself. At the time of admission the authorities send all the relevant documents to get the cashless facility. After having an official scrutiny the medical assistance was sanctioned and this complainant got information that Rs.50,000/- was advanced to the hospital account by Ops. But later the claim application was rejected and withdrawn the advance amount of Rs.50,000/- which was already allowed. The complainant was admitted on 19/2/2019 a junior doctor from North Indian who was on duty at casuality and preparing the case sheet he asked about the injuries and he mistakenly noted in the case sheet that history of the fall happened two years back instead of 2 months back. Dr.Schiller Jos who examined the complainant and conducted the operation and who issued a certificate to state that the injuries caused is recent one and the reason for operation also. But this complainant was compelled to remit the entire hospitalization and operation expenses ie, Rs.1,90,000/- to the hospital prior to the discharge. Then the complainant had approached the insurance ombudsman, Kochi complaint No.KOC-H-044-2021-0250 and the same was dismissed on 5//11/2020. The complainant had paid an amount of Rs.1,90,000/- towards the hospital expenses only. The act of Ops in rejecting the cashless benefit and rejecting the entire claim heavy mental agony caused to the complainant. So there is deficiency in service and unfair trade practice on the part of OPs. Hence the complaint.
After receiving notice all OPs entered before the commission and filed their written version contending that the policy schedule “the insurance under this policy is subject to conditions, clauses, warranties ,exclusions etc attached. Moreover in the IP initial assessment sheet dtd. 19/2/2019, the patient was admitted with” complaint of pain in (right) shoulder, history of fall(while playing badminton) 2 years back following which it was started. Moreover the patient had history of appendicectomy+ ovarian cyst excision done 8 years back and history of ovarian cyst excision 2 years back treated medically. As per the policy pre-existing disease is excluded under waiting period 3(iii) of the policy. The complainant had stated “No” in the proposal form to the specific questions, and the complainant has wilfully suppressed the pre-existing disease. So the Ops had rejected the cashless facility and withdrawn the initial authorization amount and the same was communicated to the hospital and complainant letter dtd.23/2/2019. The complainant had submitted a certificate dtd.27/2/2019 issued by Dr.Schiller Jos, Orthopaedic surgeon before the Hon’ble Insurance ombudsman which stated that the patient had sustained an injury on 23/12/2018. Previous injury which occurred 2 years back while playing badminton is not related to the current diagnosis. But the complainant has wilfully suppressed those previous injury details in the proposal form at the time of taking the policy and hence it amounts to suppression of material facts. It is the settled law that the terms and condition of the policy and the OP’s side there is no deficiency of service or unfair trade practice and the complaint may be dismissed.
On the basis of the rival contentions by the pleadings the following issues were framed for consideration.
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled for any relief?
- Relief and cost.
The evidence consists of the oral testimony of PWs1 and 2 and Exts. A1 to A4 were marked. On OP’s side DW1 was examined and Exts.B1 to B9 were also marked . Complainant filed argument note and OP’s counsel argued the matter.
Issue No.1:
The Complainant adduced evidence before the commission by submitting her chief affidavit in lieu of her chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. She was cross examined as PW1 by OPs. The documents Exts.A1 to A4 were marked on her part to substantiate her evidence.
According to the complainant she is the policy holder of OPs and the agent of OP promised that the OPs are providing policy with cashless facility also. But the OPs rejected the claim . In the evidence of PW1 she deposed that “ നിങ്ങൾ ആദ്യം policy എടുത്തത് 22/3/2017 to 21/3/2018 വരെയുള്ള medi classic policy ആണ്? അതെ. അതിന് ശേഷം ആ policy convert ചെയ്ത് family health optima policy ആക്കി? അതെ. അതിന്ർറെ period 22/3/2018 മുതൽ 21//3/2019 വരെയാണ്? അതെ. The complainant sustained a muscular injury due to fall on the courtyard of complainant’s house on 23//12/2018 and the complainant was admitted on 19/2/2019 before the Baby Memorial Hospital, Kozhikode for surgery. As per Ext.A1 clearly shows that the complainant came to St. Joseph hospital Karuvanchal on 23/12/2018 with complaint of pain in ( R) shoulder. In Ext.A2 the MRI scan report also noted mild shoulder joint effusion with effusion in subacromial subdeltoid Bursa.
In the evidence of PW2,Dr.Schiller Jos who deposed that in Ext.B3 certificate she suffered from rotated cuff tear with anterior labral tear right shoulder. Did you find any pre-existing injury in the (R ) shoulder connected to the diagnosis? The age of the injury cannot be precisely determined from the MRI. It is not very old injury. She had a recent injury. In Ext.B3 prepared by the admitting doctor I have only countersigned. In Ext.B4 in which it is stated that she had an injury on 23/12/2018 Previous injury which occurred 2 years back while playing badminton is not related to the current diagnosis.
In the evidence of DW1 who stated that “ Karuvanchal , St. Joseph Hospital -ൽ 23/12/2018 ന് മുൻപ് പരാതിക്കാരി muscle tearനോ മറ്റുവല്ല ചികിത്സയോ നടത്തിയിരുന്നോ എന്ന് നിങ്ങൾ അന്വോഷണം നടത്തിയോ?ഇല്ല. Admit ചെയ്ത doctor നെയോ operation നടത്തിയ doctor നെയോ കണ്ട് നിങ്ങൾ ചോദ്യം ചെയ്ത് വല്ല മൊഴിയും എടുത്തോ? ഇല്ല. പരാതിക്കാരി പരാതി കൊടുക്കുന്നതിന് മുൻപ് അടച്ച പണം തിരിച്ച് കിട്ടണമെന്ന് പറഞ്ഞ് നിങ്ങൾക്ക് അപേക്ഷ തന്നിരുന്നു?തന്നിരുന്നു. ആ അപേക്ഷയിൽ പറഞ്ഞത് North Indian യിലെ doctor തെറ്റായി 2 മാസം മുൻപ് എന്ന് പറഞ്ഞതിന് പകരം 2 വർഷം മുൻപ് എന്ന് തെറ്റായി എഴുതിപ്പോയതാണ്ന്ന് പരാതിക്കാരി പറഞ്ഞിരുന്നില്ലേ? പറഞ്ഞിരുന്നു. പരാതിക്കാരി സമർപ്പിച്ച രേഖകൾ പരിശോധിച്ചാൽ 2 മാസം മുൻപുള്ളതാണ്? അതെ. 2017-ൽ policy ഉള്ളതുകൊണ്ട് 2 വർഷം മുൻപേ ഒരു injury സംഭവിച്ചാലും ആ സമയത്തും claimചെയ്യാൻ നിയമപരമായി തടസ്സം ഇല്ലല്ലോ? ഇല്ല.Admission register ന്ർറെ copy അല്ലാതെ മറ്റ് പരിക്കുകൾ 2 yearsന് മുൻപ് ഉണ്ടായി എന്നതിന് യാതൊരു തെളിവും നിങ്ങൾക്ക് കിട്ടിയിട്ടില്ല? ഇല്ല. സാധാരണ ഒരു policy യിൽ ഒരു material fact suppress ചെയ്താൽ ആ policy റദ്ദാക്കണം?അത് companyയുടെ വിവേചനാധികാരമാണ്. Muscle tear സംഭവിക്കുന്നത് അപകടത്തെ തുടർന്നാണ്, രോഗത്തെ തുടർന്നല്ല എന്ന് നിങ്ങൾ മനസ്സിലാക്കിയോ? എനിക്കറിയില്ല. ഈ claim ന് വിധേയമായ injury pre-existing അല്ല എന്നും അപകടത്തെ തുടർന്നാണെന്നും പറഞ്ഞാൽ? ശരിയല്ല. Moreover, the Hon’ble Insurance Ombudsman award passed on 5/11/2020 and the complainant submits that she and treating doctor was not present before the Hon’ble Insurance ombudsman regarding the Covid 19 pandemic.
So the complainant admitted in the hospital and discharged during the policy period. The medical expenses incurred for Rs.1,90,000/- shown in Ext.A4. Since the OPs denied the cashless benefit. The insurance coverage from 22//3/2018 to 21/3/2019. The complainant undergone treatment from 19//2/2019 to 23/2/2019 during the coverage period. So we are of the considered view that the OPs are liable to pay the medical bill to the complainant. But they failed to do .So we hold that there is deficiency of service and unfair trade practice on the part of OPs. Hence the issue No.1 is found in favour of the complainant and answered accordingly.
Issue No.2&3:
As discussed above the complainant is the policy holder of Ops. The complainant is treated from 19/2/2019 to 23/2/2019 within the coverage period. So we hold that the Ops are directly bound to redressal the grievance caused to the complainant. So the complainant is entitled to get the medical expenses from Ops. Therefore we hold that the OPs 1 to 3 are jointly and severally liable to pay the medical bill for Rs. 1,90,000/- to the complainant along with Rs.25,000/- as compensation for mental agony caused to the complainant and Rs.10,000/- as litigation cost. Thus issue No.2&3 are also accordingly answered.
In the result the complaint is allowed in part directing OPs 1 to 3 are jointly and severally liable to pay the medical bill for Rs. 1,90,000/- to the complainant along with Rs.25,000/- as compensation for mental agony caused to the complainant and Rs.10,000/- as litigation cost within 30 days of receipt of this order. In default the amount of Rs.1,90,000/- carries 9% interest per annum from the date of order till realization. Failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.
Exts:
A1- Copy of case sheet issued from St.Joseph Hospital,Karuvanchal dtd.23/12/2018
A2-MRI Scan report
A3- Discharge summary issued by Baby Memorial hospital, dtd.23/2/2019
A4-Final bill issued -do-
B1-Discharge summary(A3)
B2-A4
B3-A1
B4- MRI Scan report .
B5- copy of IP assessment sheet
B6-Copy of rejection &Withdrawal of approval amount dtd.23/2/19
B7- Original discharge summary
B8-copy of repudiation letter dtd.15/5/19
B9 copy of award passed by insurance ombudsman
PW1-Bindu Abraham- complainant
PW2- Dr.Schiller Jos-witness of PW1
DW1-Balu.M- OP witness of OPs
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva /Forwarded by Order/
ASSISTANT REGISTRAR
