Dt. of filing -06/03/2018

Dt. of Judgement – 24/04/2019

Mrs. Sashi Kala Basu, Hon’ble President

        This consumer complaint is filed by the  complainants  namely Smt. Eva Sardar  ( Halder ) and Shri Gouranga Sardar under Section 12  o the Consumer Protection Act against t he Opposite Parties  namely (1) United India Insurance Co. Ltd., (2) Smt. Chandrani Mahalanabish  and (3) The Heritage health TPA Pvt. Ltd. alleging deficiency  in service on their part.

 Complainant’s case in brief is that complainant No. 1 is the Policy Holder of Mediclaim Policy under  OP No.1  complainant No.2  is the husband of complainant No.1  and proposer of the claim on behalf of the  complainant no.1 under the said mediclaim policy. Complainant no.1  was diagnosied   with perianal abscess with fissure in Ano and  was admitted to Seva Niketan Nursing Home on  10.07.2016 under the  treatment of Dr.  Partha Sarkar. He  performed the surgery. On 11.07.2016  complainant no.1 was discharged  from the  said Nursing Home.  So the claim  was made before the OP No.1  for reimbursement  of the medical bill of Rs. 48,866/- covered under the Mediclaim Policy and the necessary documents  were also filed.   Vide its letter dated 23.09.2016, OP No.1  informed the complainants that the  said claim of Rs. 48,866/- was not tenable  as per Clause – 3.23 of the  Mediclaim Policy  as the operation was performed by a Ayurvedic practitioner. So, being aggrieved  complainants moved before the Grievance Cell, Directorate  of CA and FBP ( South 24 – Pgs. ) but as mediation  failed before the said Grievance Cell  the present complaint has been filed by the complainants  praying for  directing the OPs to pay a sum of Rs.  48,866/-, Rs. 25,000/- for mental harassment and Rs. 5,000/-  towards the litigation cost.

Complainant has annexed with the complaint petition,  copy of the  relevant portion of the policy, the medical bills, the discharged certificate, copy of claim made for reimbursement and the letters sent  by the OP No.1 intimating  inability to entertain the claim  as it was not tenable  under Clause 3.23  of the Policy. Complainant has also filed copy of  another letter requesting   for reconsideration  of their  claim and the reply thereto by the OP.

 OP Nos.1 & 2  have contested  the case   by filing the W.V. denying and disputing the allegations made in the complaint. It has been contended that as per Clause 3.23 of the Policy  Doctor  who performed the operation in this case being a Ayurvedic  Doctor  was not  within the  definition  of medical practitioner  and so  the complainants were not entitled to the reimbursement of the amount. So, the OPs  have prayed for dismissal  of the case. It appears from the record that the OP No.3 did not  take any step and so the case proceeded exparte.     

          During the course of the evidence, the complainants and the  OP Nos. 1 and 2 adduced  their  respective evidence by way of filing  affidavit in chief followed by filing questionnaire and reply thereto. Ultimately,  argument  has been  advanced by both the parties. Complainants  have also filed the written notes of argument.

          So, the following  points require determination :

1. Whether there has been any deficiency in service on the part of the OPs ?
2. Whether  the complainants are entitled to the  relief as prayed for ?

Decision with reason

          Point Nos. 1 & 2: Both these points are taken up for  comprehensive discussion  in order to avoid repetition. At the very outset, it may be pertinent  to point out  that it is not disputed  that the complainant was  a holder of  the mediclaim policy  and  the complainant  no.1  underwent an operation on 10.07.2016  by Dr.  Partha Sarkar at Seva Niketan Nursing Home and  she was  discharged  on 11.07.2016.  There is also no dispute that an amount of Rs. 48,866/-  was paid by the complainants  towards the said surgery/treatment.

          The bone of contention  mainly is  that the Doctor namely Partha Sarkar who had  conducted the surgery  could not be said   to be a medical practitioner  as he was the Ayurvedic doctor  and so operation performed by the said Doctor did not cover under Clause 3.23  of the Mediclaim Policy. Ld. Advocate for the complainants has argued that  even a Ayurvedic Doctor as in this case, is registered as practitioner  of Indian Medicine as defined in 2(c) of   practitioners  of Indian medicines  ( standards of professional  conduct Etiquette and code of  ethics ) Regulations, 1982 having degree in Bachelor of Ayurvedic Medicines and Surgery from Paschimbanga Ayurved Parisad. It is further argued that  as per  Section 2(h)  of Indian Medicine  Central Council recognised  medical  qualification  means   any of the  medical qualifications including  post graduate medical  qualifications of Indian Medicines  included in the  2^nd, 3^rd or 4^th Schedule and West Bengal Paschim Banga Ayurvedic Parishad wherefrom the said Doctor has  completed his degree  is a recognised University  under the said Act.

          So in the backdrop of the argument advanced by both  the parties, the relevant  Clause of the Policy as agitated by the  OPs has to be considered. According to Clause 3.23 it reads “  Medical Practitioner   is a person who holds  a valid  registration  from the Medical Council   of any State of  India  or  Medical Council  of India or Council for  Indian Medicine or for  Homeopathy set up  by the Government of India  or State Government and is thereby entitled to practice  medicine within its jurisdiction  and is  acting  within  the scope and jurisdiction of licence .

          The term Medical Practitioner   would include physician, specialist and surgeon. ( The registered Practitioner  should not be  insured or close family  members  such as parents, in-laws , spouse, children )”.

          So, it is apparent that  in Clause 3.23   it does not  speak about the Aurvedic Doctor . However, even if  accepting the contention of the complainant  that an Aurvedic  Doctor is also registered as practitioner of Indian Medicine  defined in (2)(c) of Practitioners of Indian Medicine   (Standards of professional conduct,  Etiquette and Code of  Ethics )  Regulations, 1982, the question which requires to be adjudicated  is whether the Doctor who admittedly is an Ayurvedic Doctor was within the scope  and jurisdiction of his licence to perform the surgery. The emphasis  is made in the specific recital  in the said Clause under  3.23 of Policy  “and is acting within the scope  and jurisdiction  of his licence”. The complainant even though  has stated in the argument  that the  Doctor who had  performed the surgery  was eligible  to conduct surgery, has not  filed any document  in order to show that  Doctor who had performed  surgery  even though was Ayurvedic  Doctor but was acting  within the  scope and jurisdiction of his licence. It cannot be said  that  all the  doctors  who are  registered under the said act  are eligible to perform surgery. The complainant has not filed any document/licence as stated in Clause 3.23  in respect of Dorctor  Partha Sarkar that he was   acting with in the scope and jurisdiction of his licence.  Mere argument  cannot take place of evidence. The  same  has  to be  substantiated  by  way of  cogent  evidence. Be it documentary  or oral  evidence of the concerned Doctor. In such a situation  in the absence of the document  that the said Doctor was acting within the  scope and jurisdiction  of his licence and thus was  eligible to perform surgery, the claim of the complainants  cannot be allowed and thus  liable to be rejected.

          These points are answered accordingly.

Hence,

                      Ordered

          CC/104/2018 is dismissed on contest.