Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-112/15.05.2019
G.L. Duneja
A-128, Phase-1, Ashok Vihar
New Delhi-110052 ...Complainant
Versus
OP1: Branch Manager
United India Insurance Company Limited,
10203, Jamna House, Nr. Vishal Mega Mart,
Padam Singh Road, Karol Bagh,
New Delhi-110005
OP2: Chairman
United India Insurance Company Limited
24, Whites Road, Chennai, 600014 ...Opposite Party
Order Reserved on: 01.03.2023
Date of Order: 09.05.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
Ms. Shahina, Member -Female
Vyas Muni Rai
ORDER
1.1. The instant complaint has been filed by Sh. G.L. Duneja (in short the complainant) against United India Insurance Co. Ltd. impleading its Branch Manager (in short OP1) and its Chairman (in short OP2) [impleadment of the OPs are as a nomenclature but both are one and the same company, therefore, while discussing the complaint on merit the term OP will be used only]. The complainant is of 70 years old senior citizen who took the health insurance policy [mediclaim policy] from OP; nomenclature of the policy is ‘SyndArogya Group Mediclaim’ having policy no. 0405002815P114731130 which was valid for the period 12.03.2016 to 11.03.2017; the sum insured is Rs. 4,50,000/- having premium of Rs. 6,833/- (policy at page no. 11 of the paper-book).
1.2. The complainant pleads that the very objective of the healthcare/ mediclaim policy is to get the coverage for ailments and injuries without going into medical jargons which are now being used by the insurance companies to repudiate the claim; moreover a common man has to completely believe its doctor and terminologies like Holim Laser Charges are beyond the scope of basic understanding of a common man; it is obligatory on the part of the insurance company to pay the amount and not repudiate it based on the complexity on the medical grounds.
1.3. Complainant was admitted in Max Healthcare Hospital, Shalimar Bagh from 13.02.2017 to 15.02.2017 during the continuation of the validity period of the policy and was diagnosed as a case of “enlarged prostrate with voiding luts”, the complainant being covered under this policy decided to avail the cashless settlement through its TPA namely “Medsave health Insurance TPA Ltd”. However, TPA vide its letter dated 15.02.2017 addressed to M/s Max Health Hospital, Shalimar Bagh denied the cashless authorization for treatment on the following grounds:-(repudiation letter dated 15.02.2017 at page no. 100)
“ further cashless denied as per “Gipsa Guidelines Holep is not payable under cashless. Cashless is valid for Turp Gipsa Rate (i.e. Rs. 65,700/-).
The complainant was billed for entire treatment amount to Rs. 1,21,238/-, the amount approved by TPA was Rs. 67,500/-, hence, the complainant had no other option than to pay the amount from his own pocket because of wrong doings of the OP (hospital bills at page no. 89 of the paper-book).
1.4. Complainant feeling aggrieved by the wrongful acts of the OP, lodged a complaint with the Insurance Ombudsman vide complaint no. DEL-G-051-1718-0344; dated 22.08.2017 and the complaint lodged before the Ombudsman was disposed off vide order dated 30.11.2018, holding therein, inter alia, “the insurance company had rightly repudiated the claim as per clause 2.35 and clause 2.25 of the policy; (copy of the order dated 30.11.2018 passed by Ombudsman is at page no. 115-116); however, Ombudsman had failed to appreciate that complainant had filed letter dated 04.07.2017 confirming that holep was absolutely necessary keeping in mind safety of the patient. The said letter also condemns the approach of insurance company who pay for conventional techniques which are associated with the complications (letter dated 04.07.2017 at page no. 117). The complainant in para 13 of his pleadings has also referred an order of IRDA dated 29.04.2015 which will be discussed at appropriate stage while deciding the complaint on merits.
1.5. Based on the facts and circumstances discussed above, the complainant has prayed to quash the order dated 30.11.2018 passed by Ombudsman upholding the view of OP; to instruct the OP to pay the pending/ balance claim amount of Rs. 55,538/- along with interest at the rate of 18% pa compounded annually on the balance claim; the tenure of the interest shall be from the date of partial payment till the actual realization of the payment; Rs. 1,00,000/- for mental harassment and agony; apart from Rs. 20,000/- as litigation expenses.
2.1. OP has filed the reply of the complaint under the signature of Sh. Pankaj Lamba, AO, being the authorized signatory, [also AR of the OP company]. At the outset, OP has pleaded that “insurance” is a matter of contract between the insurance company and the insured and is governed by the terms and conditions of the contract and the respondent/ OP Insurance company is not liable for any claim which is either not covered under the policy or is in violation of the terms and conditions of the contract. The complainant may be directed to show original insurance policy.
2.2. Syndicate Bank is a necessary party for the adjudication of the present case and claim is not maintainable in the absence of the necessary parties, the complainant has not come to this Commission with clean hands and is guilty of suppressing the material facts; hence, the complaint is liable to be dismissed against the OP with heavy cost; claim in the present case has been repudiated vide letter dated 15.02.2017 as per Gipsa Guidelines, Holep is not payable under cashless, cashless is valid for Turp Gipsa Rate; it has been further submitted that in the ‘Laser Assisted Haemorrhoidectomy/ Prostatectomy’ case liability of the insurance company is restricted to the cost of conventional tonsillectomy. The complainant had also filed claim before the Ld. Ombudsman and the decision of the insurance company was upheld by the Ld. Ombudsman vide order dated 30.11.2018. There is no deficiency of services on the part of the OP. The present complaint filed by the complainant is not maintainable as the present complaint involves the complex question of law and facts which cannot be decided on summary basis; as such the present complaint is without any basis and is liable to be dismissed. The complainant has already opted for Ombudsman and the same complaint is not maintainable before the Hon’ble Commission; there is no cause of action against OP, the aforesaid submission in written reply of OP has been given under the preliminary objections and in Reply on Merits, OP has denied the pleadings of the complaint being wrong and false and/ or for want of knowledge and no additional/ new points have been stated.
3. Complainant has filed its rejoinder to the reply filed by the OP and its facts and features are on the line of the pleadings in the complaint.
4. Both the parties have filed their respective affidavits of evidence. The complainant has filed his affidavit of evidence under his signature having no new facts; as there is narration of the pleadings of the complaint. Mr. Sanjay Sharma, Senior DM in the Company of OP has filed the affidavit, wherein facts of the reply have been stated, except Exh. RW-1/1 and Exh. RW-1/2 which are the letters and order having Gipsa Guidelines regarding non-payment of Holep under cashless and order dated 30.11.2018 of the Ombudsman respectively.
5. Written arguments have also been filed on record by both the parties which are narration and reiteration of the pleadings of the complaint and reply of respective party having no new/ additional facts. Mr. Sachin Dhamija, Advocate for complainant addressed oral submissions but no submission on behalf of OP.
6. We have considered the contentions and rival contentions of the parties, documents available on record and will analyse and consider the case accordingly while discussing on the merit.
7.1. The complainant is the policy holder of the OP company; he was admitted in the hospital for his treatment during the validity of the policy; he was given the treatment of holep medical technology, policy being cashless , order of the ombudsman dated 30.11.2018 and payment of Rs. 67,500/- by OP was approved by TPA out of bills of Rs. 1,21,238/- are the admitted facts by the parties.
7.2. To begin with discussion on merit, we would like to take the objections/ contentions raised by OP in its reply i.e. (1). Complainant has no cause of action- this stand of the OP is not sustainable on the ground that the OP is the insurer, the complainant being insured; was admitted for treatment in the hospital but as alleged by the complainant the complete expenses of the treatment was not approved by the OP, therefore, complainant had cause of action to file the present complaint; (2). OP has also taken the objection that the complaint is not maintainable as the present complaint involves the complex question of law and facts which cannot be decided on summary basis also does not stand to the scrutiny of law as we do not find any complex question of law and facts in this matter, thus issue of non-maintainability of the complaint is also decided against the OP; (3). OP’s stand that Syndicate Bank is necessary party for the adjudication of the present case and the claim is not maintainable in the absence of the necessary parties; but OP has nowhere described either in its written reply or in its affidavit or in its written submissions as to how and in what manner Syndicate Bank is necessary party and the complaint cannot be adjudicated upon without impleadment of Syndicate Bank as a party; more so, complainant in his rejoinder has specifically denied that Syndicate Bank has no role to play in the adjudication of the present case as the OP just want to delay the proceedings and frivolously want to add Syndicate Bank as a party; this objection of OP is also decided against it.
7.3. Further, OP has also submitted that since the present complaint was also filed before the Ld. Ombudsman and the decision of the insurance company was upheld by the Ld. Ombudsman vide order dated 30.11.2018, however, decision of the Ombudsman upholding the part payment of the claim of the complainant does not stand as a bar for the complainant to seek the redressal of his grievances available to him in accordance with law including Consumer Commission, therefore, this stand of the OP regarding filing of complaint before this Commission after the order of Ombudsman is also not sustainable.
7.4. OP had settled the claim of the complainant by invoking clause 2.35 and clause 2.25 of the policy (Page no. 15 & 16) having the terms and conditions of the insurance document governing the contract between OP and the complainant; both the clauses are reproduced as under:-
“Clause 2.35- Reasonable and customary charges:
Reasonable Charges means the charges for services or supplies, which are the standard charges for the specific provider and consistent with the prevailing charges in the geographical area for identical or similar services, taking into account the nature of the illness/ injury involved.
Clause 2.25- Network provider:
Network Provider means hospitals or health care providers enlisted by an insurer or by a TPA and insurer together to provide medical services to an insured on payment by a cashless facility.
The list of network hospitals is maintained by and available with the TPA and the same is subject to amendment from time to time.
Preferred Provider Network means a network of hospitals which have agreed to a cashless packaged pricing for certain procedures for the insured person. The list is available with the company/ TPA and subject to amendment from time to time. Reimbursement of expenses incurred in PPN for the procedures (as listed under PPN package) shall be subject to the rates applicable to PPN package pricing. (copy of policy’s terms and conditions is at page no. 13-19)
The entire defence of OP1 is centered around the reference of PPN package rate under clause 2.25 of the mediclaim policy. It is also the case of OP that the further cashless claim has been denied vide letter dated 15.02.2017 [page no. 100 of the complaint] and as per Gipsa Guidelines Holep is not payable under cashless; cashless is valid for turp Gipsa Rate and liability of the insurance company is restricted to the cost of conventional treatment. It is also the case of OP that claim was settled as per terms and conditions of the policy contract, the amount entitled has already been settled and paid.
7.5. The complainant has relied on IRDA’s order dated 29.04.2015 in case of Good Health Plan (TPA) Ltd. Hyderabad holding that in case the insured opts for same package, which are over and above the PPN rates or prefer hospital out of PPN, the insurer should honour all such reimbursement claims if otherwise admissible; this finding is not applicable in the facts and circumstances of the case in hand; an insurer and an insured are bound by the terms and conditions of the policy documents and contract entered between the parties.
8. We also place reliance on case titled “Oriental Insurance Company Ltd. vs Soni Chariyan” II(1999) CPJ 13(SC), wherein, it was held that the insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy that being so, the insured has also to act strictly in accordance with statutory limitations or terms of the policy expressly set out therein.
9. In Surajmal Ramnivas Oil Mills Pvt. Ltd vs UIIC Co. Ltd. reported as 2010[10] SCC 567, it was held [while reiterating the judgment of Soni Chariyan] that since; the insurance between the insurer and the insured is a contract between the parties the terms of the agreement including applicability of the provisions and also to its exclusion had to be strictly construed to determine the extent of liability of the insurer.
10. It is admitted case of the parties that privity of contract exist between the complainant/ insured and OP/ insurer and so far actions/ consideration by OP are concerned, the same are the subject matter of clause 2.35 and 2.25. We find no merit in the case of complainant against OP in rejecting part of the amount of the medical bills spent by the complainant.
11. Based on the above discussions and deliberations, taking the totality of the circumstances and the ratio of the law laid down in judgments aforecited, and considering the case in pith and substance, the complaint is dismissed as complainant has failed to prove his case.
12. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
13: Announced on this 9th May 2023.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
