Order by:
Sh.Amrinder Singh Sidhu, President
1. Initially, the present complaint has been filed by Lal Singh son of Mukhtiar Singh under section 12 of the Consumer Protection Act, 1986 (now under section 35 of the Consumer Protection Act, 2019) and thereafter, during the pendancy of this complaint, said Lal Singh died and lateron, his legal heirs have been impleaded who pursued the matter. It is alleged that Opposite Party No.4 is a cooperative society and the Cooperative department had launched a scheme by the name of Bhai Ghanhya Sehat Sewa Scheme for providing good medical facility in reputed hospitals. Said scheme is only for the members, employees and workers of the Cooperative Societies, Institutions and Banks registered under the provisions of Punjab Cooperative Societies Act, 1961. In this scheme medical, surgical treatment is available to the beneficiaries from the date of issue of medi claim policy by the insurer. Before launching of the scheme a Service Level Agreement was signed amongst the trust and United India Insurance Company Limited. Under this agreement, the insurer was to select a TPA, for providing health services as per the terms and conditions of the tender document. Accordingly Lal Singh (now deceased) being a member of this society alongwith his family members filed the forms and deposited the requisite fee for one year policy on 29.08.2018 to avail the insurance backed medical facilities and thereafter, Opposite Party No.1 issued a policy Card MDID No.MDI5-BGSSS-00711126-S for one year. During the said policy, Lal Singh suffered from problem i.e. Enlarge of Prostate Gland due to which he remained under treatment in Dr.Satya Pal Mittal Hospital, Moga from 02.10.2018 to 04.10.2018 and during the whole treatment, said Lal Singh spent Rs.36,500/- and after the treatment, the complainant lodged the claim for the reimbursement of his medical expenses with the Opposite Parties and also completed all the formalities, but the Opposite Parties did not pay any heed to the request of the policy holder. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and as such, the Complainant is left with no other alternative but to file the present complaint. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Parties may be directed to reimburse the medical expenses amounting to Rs.36,500/- and Rs.25,000/- as compensation on account of mental tension, physical harassment.
2. Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of Opposite Party No.1 and that the complaint is absolutely false and frivolous. It is submitted that Divisional Office is situated at Mohali of Opposite Party No.1 has issued Bhai Ghaniya Sehat Scheme to Opposite Party No.3 and for this purpose, Opposite Party No.2 was appointed as TPA and has been entrusted the job to process the health claim. Opposite Party No.2 is responsible for issuing the health cards to the beneficiaries and the booklet containing terms and conditions of Bhai Ghaniya Sehat Scheme to the card holders. Opposite Party No.2 is also responsible to select the network hospitals by empanelling them and to provide list of network hospitals to the trust members/ beneficiaries. As per clause 1.9.11 of the guidebook provided to card holders any treatment taken from a hospital not included in the list of network hospitals, except in government hospitals is not covered under the benefits of Bhai Ghaniya Sehat Scheme. The policy holder Lal Singh (since deceased) has availed the treatment from Dr.Satya Paul Mittal Hospital, Moga which is neither a government hospital nor included in the list of network hospitals and thus the claim of the complainant has been repudiated by the TPA on 10.01.2019 on valid, legal and cogent grounds as per the terms and conditions of the policy. On merits, the Opposite Party No.1 took up almost the same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
3. None has put in appearance on behalf of Opposite Parties No.2 and 4 and hence, Opposite Parties No.2 and 4 were proceeded against exparte.
4. Opposite Party No.3-Bhai Ghaniya Trust appeared through counsel and contested the complaint by filing the written version on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of Opposite Party No.1 and that the complaint is absolutely false and frivolous against answering Opposite Party. It is submitted that the member/ beneficiaries had been clearly informed that the complete financial and legal liabilities, if any, arising consequent to the operationalisation of the scheme or the policy shall rest exclusively and unconditionally with MD India Health Insurance TPA and United India Insurance Company. The member has given his/ her undertaking on the enrolment form which was supplied to him/ her by the insurer. United India Insurance Company Opposite Party No.1 had been appointed as insurer by the Trust which had appointed MD India Health Insurance TPA to implement the Bhai Ghaniya Sehat Scheme during the period 15.08.2018 to 14.08.2019 and to settle the claims of hospitals and beneficiaries and to make the payment to the empanelled hospitals or providing cash less services or to reimbursement the amount of treatment to the beneficiaries of the scheme as the case may be on receipt of money from the insurer and as such, the complaint is liable to be dismissed against Opposite Party No.3. On merits, the Opposite Party No.3 took up almost the same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
5. In order to prove their case, the complainants tendered into evidence affidavit of Gurdev Kaur Ex.CW1 alongwith copies of documents Ex.C1 to Ex.C14 and closed their evidence.
6. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 tendered into evidence affidavit of Sh.R.N.Bansal, Sr.Divisional Manager Ex.OP1/1 alongwith copy of network hospital Ex.OP1/2. Similarly, Opposite Party No.3 tendered into evidence the affidavit of Sh.Balbir Singh Bhatia Ex.Op3/1 alongwith copies of documents Ex.Ops3/2 and Ex.OP3/3 and thereafter, the Opposite Parties closed their respective evidence.
7. We have heard the ld.counsel for the parties and gone through the documents placed on record.
8. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the written version filed on behalf of Opposite Party No.1 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Opposite Party No.1 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 No.1. Further contended that initially, the presnt complaint has been filed by Lal Singh who has since expired during the pendancy of this complaint, and lateron, his legal heirs have been impleaded who pursued the matter. Further contended that Opposite Party No.4 is a cooperative society and the Cooperative department had launched a scheme by the name of Bhai Ghanhya Sehat Sewa Scheme for providing good medical facility in reputed hospitals. Said scheme is only for the members, employees and workers of the Cooperative Societies, Institutions and Banks registered under the provisions of Punjab Cooperative Societies Act, 1961. In this scheme medical, surgical treatment is available to the beneficiaries from the date of issue of medi claim policy by the insurer. Before launching of the scheme a Service Level Agreement was signed amongst the trust and United India Insurance Company Limited. Under this agreement, the insurer was to select a TPA, for providing health services as per the terms and conditions of the tender document. Accordingly Lal Singh (now deceased) being a member of this society alongwith his family members filed the forms and deposited the requisite fee for one year policy on 29.08.2018 to avail the insurance backed medical facilities and thereafter, Opposite Party No.1 issued a policy Card MDID No.MDI5-BGSSS-00711126-S for one year. During the said policy, Lal Singh suffered from problem i.e. Enlarge of Prostate Gland due to which he remained under treatment in Dr.Satya Pal Mittal Hospital, Moga from 02.10.2018 to 04.10.2018 and during the whole treatment, said Lal Singh spent Rs.36,500/- and after the treatment, the complainant lodged the claim for the reimbursement of his medical expenses with the Opposite Parties and also completed all the formalities, but the Opposite Parties did not pay any heed to the request of the policy holder. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service
9. On the other hand, ld.counsel for the Opposite Party No.1 has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that Divisional Office is situated at Mohali of Opposite Party No.1 has issued Bhai Ghaniya Sehat Scheme to Opposite Party No.3 and for this purpose, Opposite Party No.2 was appointed as TPA and has been entrusted the job to process the health claim. Opposite Party No.2 is responsible for issuing the health cards to the beneficiaries and the booklet containing terms and conditions of Bhai Ghaniya Sehat Scheme to the card holders. Opposite Party No.2 is also responsible to select the network hospitals by empanelling them and to provide list of network hospitals to the trust members/ beneficiaries. As per clause 1.9.11 of the guidebook provided to card holders any treatment taken from a hospital not included in the list of network hospitals, except in government hospitals is not covered under the benefits of Bhai Ghaniya Sehat Scheme. The policy holder Lal Singh (since deceased) has availed the treatment from Dr.Satya Paul Mittal Hospital, Moga which is neither a government hospital nor included in the list of network hospitals and thus the claim of the complainant has been repudiated by the TPA on 10.01.2019 on valid, legal and cogent grounds as per the terms and conditions of the policy. Similarly, ld.counsel for Opposite Party No.3 also contended that the member/ beneficiaries had been clearly informed that the complete financial and legal liabilities, if any, arising consequent to the operationalisation of the scheme or the policy shall rest exclusively and unconditionally with MD India Health Insurance TPA and United India Insurance Company. The member has given his/ her undertaking on the enrolment form which was supplied to him/ her by the insurer. United India Insurance Company Opposite Party No.1 had been appointed as insurer by the Trust which had appointed MD India Health Insurance TPA to implement the Bhai Ghaniya Sehat Scheme during the period 15.08.2018 to 14.08.2019 and to settle the claims of hospitals and beneficiaries and to make the payment to the empanelled hospitals or providing cash less services or to reimbursement the amount of treatment to the beneficiaries of the scheme as the case may be on receipt of money from the insurer and as such, the complaint is liable to be dismissed against Opposite Party No.3.
10. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of Opposite Party No.1 has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party No.1 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 No.1. 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.
11. For the sake of arguments, for the time being, if the written reply filed by Opposite Party is presumed to be correct, the main plea raised by the Opposite Party No.1 is that as per clause 1.9.11 of the guidebook provided to card holders any treatment taken from a hospital not included in the list of network hospitals, except in government hospitals is not covered under the benefits of Bhai Ghaniya Sehat Scheme. The policy holder Lal Singh (since deceased) has availed the treatment from Dr.Satya Paul Mittal Hospital, Moga which is neither a government hospital nor included in the list of network hospitals and thus the claim of the complainant has been repudiated by the TPA on 10.01.2019 on valid, legal and cogent grounds as per the terms and conditions of the policy.
12. It is not disputed that Opposite Party No.1 issued a policy Card MDID No.MDI5-BGSSS-00711126-S for one year to Lal Singh (since deceased) and during the said policy, Lal Singh suffered from problem i.e. Enlarge of Prostate Gland due to which he remained under treatment in Dr.Satya Pal Mittal Hospital, Moga from 02.10.2018 to 04.10.2018 and during the whole treatment, said Lal Singh spent Rs.36,500/-. So we are of the opinion that payment and treatment sought by Lal Singh policy holder is not disputed. The main dispute between the parties is that Lal Singh got treatment from non network / non listed hospital provided by the opposite party that’s why claim was denied after comparing with the network hospitals by the TPA. Moreover TPA has no authority to reject the claim as only the Insurance companies after making investigations can decide the claim. Reliance in this connection can be placed upon Sukhdev Singh Nagpal Vs. New Karian Pehalwal Cooperative Agriculture Service Society & others in First Appeal No. 1105 of 2014 decided on 25.4.2017 of our own Hon’ble State Consumer Disputes Redressal Commission, Chandigarh wherein it was held that
“The TPAs have no authority to reject the claim – Such power lies , exclusively with the Insurance Companies – The TPA can only process the claim and forward the same to the Insurance Company and the competent authority of the Insurance company is to decide about the same-The claim of the complainant was illegally and arbitrarily rejected by the TPA, against the instructions of the IRDA”.
It is not the case of the Opposite Parties that the treating hospital from where the policy holder Lal Singh took treatment has charged more than the empanelled hospital. Moreover , the deduction of claim on the ground that policy holder got the treatment from non listed hospitals is totally arbitrary. Sometime it is not possible for the policy holder to approach the listed hospitals due to any reasons. So this Commission decides to allow the complaint as claim of the complainant has been rejected without any reason.
- It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of 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 Specialty Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. 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. In the facts of the present case, it cannot be denied that Lal Singh policy was admitted in Dr.Satya Pal Hospital, Moga in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. 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 Complainants and forcing them 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 13.04.201.
14. In such a situation the repudiation made by the Opposite Party No.1-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters 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.
15. In view of the above discussion, we hold that the Opposite Party No.1-Insurance Company have wrongly and illegally rejected the claim of the complainant. Resultantly, the instant complaint is allowed and the Opposite Party No.1-Insurance Company is directed to reimburse the medical expenses amounting to Rs.36,500/- (Rupees thirty six thousands five hundred only), to the complainants being the natural legal heirs of Lal Singh policy holder, within 45 days from the date of receipt of copy of this order, failing which the Opposite Party No.1-Insurance Company shall be liable to pay interest @ 8% per annum on the awarded amount from the date of filing the complaint i.e. 01.04.2019 till its realization. Opposite Party No.1-Insurance Company is 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.
16. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State 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:08.03.2022.
