| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 217 of 21-08-2018 Decided on : 17-09-2019 Saroj Rani aged about 63 years W/o Ashok Singla Manoj Singla aged about 36 years S/o Ashok Singla - both R/o H. No. 120, Home Land Enclave, Goniana Road, Bathinda.
…...Complainants Versus United India Insurance Co. Ltd., Branch Office, Thana Road, Near Sandeep Theatre, Abohar 152116, through its Branch Manager United India Insurance Co. Ltd., Divisional Office, 100 Ft. Road, Near Maheshwari Chowk, Ist Floor, Big Shot Restaurant, Bathinda 151 001, through its Divisional Manager M/s. Raksha TPA Pvt. Ltd., SCO No. 359-360, Ist Floor, Sector 44-D. Chandigarh 160 047 through its Manager Max Super Speciality Hospital, Near Civil Hospital, Mansa Road, NH-64, Bathinda 151 001 through its Director/Authorised Signatory
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986. Quorum : Sh. M.P.Singh Pahwa, President Smt. Manisha Member Present : For the complainant : Sh. Naresh Garg, Advocate. For the opposite parties : Sh. Tejinder Singh, Advocate, for OPs No. 1 & 2. Opposite party No. 3 exparte. Sh. Vinod Garg, Advocate, for OP No. 4. O R D E R M. P. Singh Pahwa, President Saroj Rani & Manoj Singla, complainants (here-in-after referred to as 'complainants') have filed this complaint under Section 12 of Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against United India Insurance Co. Ltd., and others ( here-in-after referred to as 'opposite parties'). Briefly stated, the case of the complainants is that the opposite party No. 1 issued one continuous Medi-claim insurance policy No.2001012817P105297923 w.e.f. 12-07-2017 to 11-07-2018 under cashless scheme with opposite party No. 3, as TPA. This insurance is continuous insurance since 2014. It was issued by opposite parties No. 1 & 2 at Bathinda. Both the complainants are duly insured for Rs.5,00,000/- each. The opposite party No. 1 charged Rs.25,243/- for insurance from 2017-2018 through cheque at Bathinda. It is alleged that opposite party No.2 at the time of issuing first insurance on 08-07-2014 at Bathinda, duly filled Proposal Form as per mandatory clause of IRDA Regulations 2002 (4) (1), but the opposite parties No.1 & 2 never supplied copy of Proposal Form. The opposite party No. 2 also medically examined insured persons from their paneled hospital i.e. Deep Hospital before issuing first insurance. The opposite parties No. 1 & 2 never issued any complete policy to the complainant. Rather they have issued Insurance Certificate only. It is alleged that complainant No.1 had problem for the first time on 26-12-2017 for breathlessness, palpitation, Generalised Body Weakness, Episodes of Seizures and NIL Urinary output. She was immediately shifted with Max Healthcare Hospital Bathinda, being network hospital of the opposite parties. She never undergone any hospitalization in the past history for any obesity. The treatment on 26-12-2017 was not for any obesity. She was discharged on 04-01-2018. The family of the complainant lodged claim under Cashless Scheme through Max Hospital with opposite parties No. 1 to 3. The opposite party No. 4 denied for cashless treatment in connivance with opposite parties No.1 to 3. The opposite party No. 4 is network hospital of opposite parties No. 1 to 3. Having no alternative, the complainants arranged the amount of Rs.2,22,946/- and paid the same to opposite party No. 4. It is alleged that opposite parties in connivance with each other illegally and arbitrarily rejected the cashless treatment. Thereafter the complainants lodged claim of Rs.2,22,946/- and submitted total original Discharge summaries, copies of medical treatment files along with original bills with the opposite parties on 14-1-2018. The complainant No.1 had second time problem on 05-02-2018 for Dysponea and Gradual in onset progressive in nature and she was immediately shifted with Max Healthcare Hospital Bathinda. She was discharged on 13-02-2018. The family of the complainant also lodged claim under Cashless Scheme through Max Hospital with opposite parties No.1 to 3. Again opposite party No.4 denied for cashless treatment in connivance with opposite parties No. 1 to 3. Having no alternative, the complainants arranged the amount of Rs.1,91,942/- and paid the same to opposite party No. 4 under compelling circumstances. The opposite parties illegally and arbitrarily rejected the cashless treatment. Thereafter complainant lodged claim of Rs.1,91,942/- and submitted total Original Discharge summaries, copies of medical treatment Files along original bills with the opposite parties on 03-03-2018 It is alleged that total amount of Rs.4,14,888/- i.e. Rs.2,22,946/- and Rs.1,91,942/- is pending with the opposite parties. The complainants and their son several times visited the office of opposite parties but to no response. The complainants also raised demand through e-mails dated 07-06-2018 and 19-06-2018 but to no response. It is further pleaded that vide letter dated 27-06-2018, the opposite parties illegally rejected the claim of the complainants without any genuine reason on the ground that obesity and its related treatment falls under the permanent exclusion clause. Max Hospital Doctors already certified that there is no treatment of Obesity. Moreover Exclusion Clause was to be supplied by the opposite parties before issuance of insurance policy. On this backdrop of facts, the complainants have alleged deficiency in service and unfair trade practice on the part of the opposite parties. It is pleaded that due to non-payment of claim amount, the complainants have suffered mental agony and pain. For these sufferings, complainants have claimed compensation to the tune of Rs.1,00,000/- and Rs. 50,000/- as cost of litigation besides reimbursement of medical claim i.e. Rs. 4,14,888/- with interest @8% P.A. Upon notice, none appeared on behalf of opposite party No. 3. As such, exparte proceedings were taken against opposite party No. 3. Opposite parties No. 1,2 & 4 appeared through their respective counsel and contested the complaint by filing written reply. The opposite parties No. 1 & 2 in their joint written reply raised legal objections that the complaint is not maintainable. That the complainant has got no locus standi or cause of action to file the complaint. The opposite parties issued Individual Health Policy No. 200101287P105297923 in the name of Mr. Manoj Singla covering three persons including complainants valid from 12-07-2017 to 11-07-2018. Exclusion clause 4 of this policy reveals that “The Company shall not be liable to make any payment under this policy in respect of any expense whatsoever incurred by the insured person in connection with or in respect of ….. 4.9 Convalescence, general debility, run down condition or rest cure obesity treatment and its complications including morbid obesity. It is further pleaded that first claim lodged by complainant related to the period of treatment from 26-12-2017 to 04-01-2018 and amounted to Rs. 2,22,946/. Regarding this claim, papers were sent to opposite party No. 3 by opposite party No. 1 vide letter dated 12-01-2018 for approval. The opposite party No. 3 considered all papers and discharge summery which clearly indicates diagnosis as Pnuemonia Sepsis Type -II Respiratory failure, Hypoventilation syndrome Pickwician Syndrome. After considering all papers, opposite party No. 3 sent recommendation for non-payable on the grounds that "Patient suffered from Pickwician Syndrome is also known as Obesity Hypoventilation Syndrome which leads to Respiratory failure with Sepsis with Pneumonia. The treatment of obesity falls under permanent exclusion of the policy. Hence the claim can be repudiated as per clause 4.9 of the policy. The insured was informed accordingly by opposite party No. 1 vide letter dated 05-07-2018. It is also pleaded that second claim lodged by the complainant related to the period of treatment from 05-02-2018 to 13-02-2018 and amounted to Rs. 1,88,517/-. Regarding this claim, papers were sent to opposite party No. 3 by opposite party No. 1 vide letter dated 09-04-2018 for approval. The opposite party No. 3 considered all papers and discharge summery which clearly indicates diagnosis as B/L Pnuemonia, sepsis Type-2 Respiratory Failure, DM/HTN CAD/Hypoventilation Syndrome, Transudative Pleural Effusion. After considering all papers, opposite party No. 3 sent recommendation for non-payable on the ground that C/o Hypoventilation Syndrome, Sepsis. Patient is K/C/O Pickwickian Syndrome, complication of Obesity/OHS (Hypoventilation Syndrome) like pleural infusion not covered in policy. Obesity and its related treatment falls under permanent exclusion of policy. Hence claim Non-Payable as per clause 4.9. This case was considered by RO claim review committee which decided to repudiate the claim on the grounds that patient is a K/C/O Pickwician Syndrome which is a complication of Obesity/OHS. Obesity and its related treatment falls under permanent exclusion of policy. Hence the claim can be repudiated as per clause 4.9 of the policy. The insured was informed vide letter dated 27-06-2018. The further legal objections are that this Forum has got no jurisdiction to entertain and decide this complaint. That the complainant has not come to this Forum with clean hands. He has concealed material facts. That the matter in dispute is not covered order definition of service. There is no deficiency in service or unfair trade practice on the part of the opposite parties. That intricate questions of law and facts are involved which require voluminous documents and evidence for determination. It is not possible in the summary procedure under the 'Act'. The appropriate remedy, if any, lies in civil courts and lastly that the complainants are not consumer of the opposite parties qua the relief claimed. On merits, the opposite parties, in substance, reiterated their stand as taken in legal objections and detailed above. After controverting all other averments, the opposite parties prayed for dismissal of complaint. The opposite party No. 4 in its written reply also raised legal objections that intricate questions of law and facts are involved in the complaint which require voluminous documents and evidence for determination. It is not possible in summary procedure under the 'Act'. That there is no cause of action in favour of the complainants and against the opposite party. No deficiency in service has been alleged or made out against the opposite party. The claim of complainants is an insurance claim which is to be processed, decided and paid, if payable, by opposite parties No. 1 to 3. The opposite party treated Saroj Rani twice and forwarded the request for authorization for cashless treatment to Third Party Administrator (TPA) but TPA declined the requests of complainant No.1. Since cashless requests were denied by opposite party No. 3, as such opposite party was within its right to charge the amount of medical expenditure on the treatment of complainant Saroj Rani. Therefore, no cause of action is made out against the opposite party. The further legal objections are regarding maintainability and that the complainants are not consumers. That the complaint is false, frivolous and vexatious to the knowledge of the complainants and that the complainant is not maintainable. On merits, the opposite party No. 4 has reiterated its stand as taken in legal objections and detailed above. In the end, the opposite party No. 4 also prayed for dismissal of complaint. In support of their complaint, the complainants have placed on record their affidavits dated 21-8-2018 (Ex. C-1 & Ex. C-2), photocopy of account statement (Ex. C-3), photocopy of policy (Ex. C-4 to Ex. C-7), photocopy of IRDA regulation (Ex. C-8), photocopy of medical record (Ex. C-9), photocopy of medical bill (Ex.C-10), photocopy of letter (Ex.C-11), photocopy of Medical record (Ex. C-12), photocopy of medical bills (Ex. C-13 & Ex. C-14), photocopy of letter (Ex. C-15), photocopy of e-mails (Ex. C-16 & Ex. C-17), photocopy of No Claim Letter (Ex. C-18) and photocopy of certificates (Ex. C-19 & Ex. C-20). In rebuttal, the opposite parties No. 1 & 2 have tendered into evidence photocopy of Insurance policy (Ex. OP-1/1), photocopy of letters (Ex. OP-1/2 & Ex. OP-1/3), photocopy of discharge summary (Ex. OP-1/4), photocopy of letters (Ex. OP-1/5 to Ex. OP-1/8), photocopy of discharge summary (Ex. OP-1/9), photocopy of letters (Ex. OP-1/10 & Ex. OP-1/11), affidavit dated 3-10-2018 of Baldev Singh (Ex. OP-1/12) and closed the evidence. The opposite party No. 4 has tendered into evidence photocopy of request for cashless authorization (Ex. OP-4/1 & Ex. OP-4/3), photocopy of letter (Ex. OP-4/2), photocopy of letter (Ex. OP-4/4), affidavit dated 5-10-2018 of Sunil Mehta and closed the evidence. All the parties have also submitted written arguments. We have heard learned counsel for the parties and gone through the record. The learned counsel for the parties have reiterated their version as pleaded in their respective pleadings. The learned counsel for opposite parties have also cited :- (i) I (2010) CPJ 189 case titled New India Assurance Company Limited & Another Vs. Arun Kumar Mangal (ii) Decision of Hon'ble State Commission, Punjab, in First Appeal No. 1579 of 2004 decided on 5-3-2010 in case titled Oriental Insurance Co. Ltd., Vs. M/s. Puneet Pasricha (iii) I (2010) CPJ 1 (SC) case titled M/s. Modern Insulators Ltd., Vs. Oriental Insurance Co. Ltd., We have carefully gone through the record and have considered the rival contentions. The admitted facts are that the complainants have availed insurance policy of the opposite parties. As per complainants, they are availing insurance policy since the year 2014. Although the complainant have alleged that they have not been supplied with terms and conditions of the policy but the complainants are availing the policy since the year 2014. They have not raised this issue at any time before filing of this complaint. They are repeatedly getting the policy renewed. In these circumstances, it is to be presumed that complainants received copy of insurance policy containing terms and conditions. Hon'ble Supreme Court also observed that once the Insurance policy has been issued by Insurance Company, then terms and conditions of the Insurance policy are deemed to be sent to the complainant. Therefore, the complainants cannot take plea that they were not aware of the terms and conditions of the insurance policy. The complainant took treatment from 27-12-2017 to 4-1-2018 and then from 6-2-2018 to 13-2-2018. They submitted claims of Rs. 2,22,946/- and Rs. 1,91,942/- for both the treatments. Since claims have been repudiated under the shelter of Clause 4.9 of the policy, therefore, this clause is also reproduced as under :- “4.9 Convalescence, general debility, run down condition or rest cure, obesity treatment and it complications including morbid obesity, Congenital external disease or defects or anomalies, treatment relating to all psychiatric and psychomatic disorders. Infertility, Sterility, Venereal disease , intentional self injury and use of intoxication drugs/alcohol.” The opposite parties have repudiated the claim regarding both the treatments. For the sake of convenience, repudiation of both claims is being examined separately :- Claim for the period 27-12-2017 to 4-1-2018 This claim has been repudiated on the basis of recommendation of TPA vide letter dated 9-2-2018 (Ex. OP-1/3). TPA observed and opined that :- “Patient suffered from Pickwician Syndrome is also known as obesity Hypoventilation Syndrome which lead to respiratory failure with sepsis with pneumonia.” Thus, treatment of obesity falls under permanent exclusion of the policy. Hence, claim recommended to be non-payable as per Clause 4.9. The learned counsel for the opposite parties also referred, Medical Dictionary & Medical Literature – National Heart, Lung and Blood Institute (NHLBI). As per Taber's Encyclopedic Medical Dictionary – Pickwician Syndrome means Obesity, decreased pulmonary function and polycythemia. As per aforesaid medical literature :- Obesity Hypoventilation Syndrome – Also known as Pickwickian Syndrome :- Obesity Hypoventilation Syndrome is a breathing disorder that affects some people who have been diagnosed with obesity. The syndrome causes you to have too much carbon dioxide and too little oxygen in your blood. Without treatment it can lead to serious and even life threatening health problems. According to Mediterms Medical Dictionary – Medical definition of Pickwician Syndrome : The combination of Obesity somnplence (sleepinesss), hypoventilation (under breathing) and plehoric (red) face. Therefore, point for determination is that the treatment availed by complainant No. 1 falls under Exclusion Clause . The Discharge Summary for the period of treatment from 26-12-2017 to 4-1-2018 is Ex. C-9. It reveals the following complaints at the time of admission :- Chief Complaints Breathlessness, Palpitation, Generalized Body Weakness, Episodes of Seizures, Nil Urinary Output
Ofcourse diagnosis mentioned are :- Pnuemonia, Sepsis, Mods, AK1, Type 2 Respiratory Failure, DM, Diabetic Nephropathy, HTN, hypoventilation Syndrome, Pickwician Syndrome, but from the diagnosis of Pickwician Syndrome one of the disease, it cannot be inferred that whole treatment was only for Pickwician Syndrome. Pickwician Syndrome expressly excluded from the liability of the opposite parties. The complainant has also placed on record letter Ex. C-19 issued by treating doctor wherein it was certified that patient was not treated for Pickwician Syndrome in their hospital. The opposite parties have not produced any medical record to prove that patient was treated for those diseases which are excluded under Exclusion Clause. In these circumstances, repudiation of claim for treatment for the period from 27-12-2017 to 4-1-2018 is not sustainable. Claim for the period from 5-2-2018 to 13-2-2018 The claim for subsequent treatment for the period from 5-2-2018 to 13-2-2018 has been repudiated on the recommendation of opposite party No. 3 conveyed vide letter Ex. OP-1/8 on the basis of following observations :- “C/o Hypoventilation Syndrome, Sepsis, Plural effusion, Patient is K/C/O Pickwician Syndrome, complication of obesity/OHS (Obesity Hypoventilation Syndrome) like plural effusion not covered in policy, Obesity and its related treatment falls under permanent exclusion of policy.” Therefore, the point for determination is whether complainant availed availed treatment which was excluded under Exclusion Clause 4.9. The discharge summary for the treatment for this period is Ex. C-12. Patient was admitted with the complaint of “Dysponea, Gradual in onset progressive in nature” and the treatment was as under :- “Patient was admitted with above mentioned complaints. Evaluated, thoroughly investigated and diagnosed as above. As initially patient was not maintaining SP02 ON room air was kept on intermittent NIV support/02 support. USG chest was done which was S/O B/L Pleural effusion. Diagnostic tapic was done which was transudative HRCT chest was done which was S/O.B/L Pneumonitis. Patient was managed with I/V Fluids, I/V antibiotics, nebulisation, Bronchodilators, Potassium supplements and other supportive care. Patient responded well to treatment. USG chest repeated was S/O No pleural effusion. Now patient is conscious, oriented, Afebrile, being discharged in stable condition on medical therapy. Ofcourse the diagnosis were : Sepsis, B/L Pneumonitis, Type 2 respiratory failure, Diabetic Nephropathy, Transudative Pleural Effusion, DM/HTN, CAD/Hypoventilation Syndrome. There is nothing on record to prove that this treatment was also for Obesity. Moreover, the complainants have brought on record letter Ex. C-20 whereby treating doctors as certified that patient was admitted with Pleural Effusion DM/HTN/CAD. She was not admitted for obesity/Pickwician Syndrome symptoms nor she was treatment for obesity. To counter this evidence, the opposite parties have not produced opinion of any medical expert. Therefore, the conclusion is that the treatment availed by complainant from 5-2-2018 to 13-2-2018 also does not fall under Exclusion Clause. Repudiation of this claim is also unsustainable. Now the question is regarding the amount for which complainants can be held entitled. The complainants have claimed an amount of Rs. 4,14,888/- . Copy of Insurance Policy Ex. OP-1/1 shows that there are some limitations for hospitalization benefits. The complainants can claim only as per terms and conditions/limitation prescribed in the policy. For the reasons recorded above, this complaint is partly accepted with Rs. 10,000/- against opposite parties No. 1 to 3 and stands dismissed qua opposite party 4. The opposite parties No. 1 to 3 are directed to pay remaining amount to complainant as per policy terms and conditions. The opposite parties will also furnish the details of the payments made to the complainant. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order failing which the aforesaid amount of claim, will carry interest @ 8% p.a. (as claimed by complainants) till payment. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 17-09-2019 (M.P.Singh Pahwa ) President (Manisha ) Member
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