PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
In brief, consumer dispute is as under:
2. The Complainant has obtained Mediclaim Policy bearing No. 020300/48/09/97/00000813 dt.12.5.2009 for the sum assured of Rs.4,50,000/- from Opponent No.1 on payment of premium of Rs.14,014/-. The said policy was for the period from 10.5.2009 to 9.5.2009. The Complainant has produced copy of the said policy at Exh. A-1. Opponent No.1 is an Insurance Company duly incorporated under the Companies Act and Opponent No. 2 is a T.P.A. of the Opponent No.1.
3. The Complainant is suffering from Psoriasis. She visited Dr. (Mrs.) S.S. Trasis on 29.5.2009 for consultation/treatment of Psoriasis. The Complainant is also diabetic patient. Dr. Trasis after examining her, observed that it is an acute case of Psoriasis which has converted into pustular Psoriasis and she advised/prescribed her to be admitted in the hospital for 3 to 5 days for necessary remedial treatment. On 29.5.2009, doctor prescribed Complainant some medicines. Dr. Trasis also advised Complainant to try Biologics injection i.e. Enabrel or Remicade which are developed recently. The Complainant has produced copy of the prescription given by Dr. S.S. Trasis dt.29.5.2009 alongwith complaint at Exh.B.
4. It is submitted that the Complainant agreed for treatment of the disease through Remicade injection. Dr. S.S.Trasis informed the Complainant that the Remicade was to be given in three course i.e. second course can be given after two weeks of first course of infusion of Remicade injection and third course can be given only after forty five days from the date of first course of infusion of Remicade injection. As per the doctor’s advice, the Complainant for the first time was admitted in I.C.U. at Sarla Hospital on 30.5.2009 and she was discharged from the hospital on 1.6.2009. Second time, the Complainant was admitted at Criticare Multispeciality Hospital on 17.6.2009 and was discharged on 18.6.2009. Third time, the Complainant was admitted again at Criticare Multispeciality Hospital on 8.8.2009 and was discharged on 9.8.2009. The Complainant has produced copies of aforesaid discharge cards dt. 30.5.20009, 17.6.2009 and 8.8.2009 at Exh. C, D and E.
5. It is submitted that on or about 6.7.2009, she lodged the first claim for hospitalization on two occasions. Firstly, at Sarla Hospital and secondly, at Criticare Multispeciality Hospital respectively under claim No. 545291048581 for a sum of Rs. 3,07,306/- with Opponent No.2 alongwith all the relevant papers. Subsequently, she received first email dt. 21st July 2009 from Opponent No.2 and thereby Opponent No.2 asked the Complainant to provide DOC for original date of inception, sum insured with its enhancement detail, claim history and exclusion, if any. The Complainant then enquired with Opponent No.2 to know what is meant by DOC. Opponent No.2 informed the Complainant that DOC is to be provided by Opponent No. 1 and on receiving the same from Opponent No.1, they will process with the claim of the Complainant. After lot of persuation by the Complainant’s representative with the Opponent No. 1, Opponent No.1 provided the DOC to the Opponent No.2. Opponent No. 2 then by second email dt. 8.9.2009 asked the Complainant to provide file for DO approval for treatment justification. After enquiry, Opponent No. 2 informed the Complainant that the file for DO approval is to be given by the Opponent No.1. Again the Complainant from time to time requested Opponent No.1 to send file of DO approval to the Opponent No.2. After lapse of two months, Opponent No.1 sent file of DO approval to Opponent No.2. Thereafter, Complainant lodged the second claim for hospitalization on 7.8.2009 in Criticare Multispeciality Hospital for third course of treatment under claim No.545291091937 on or about 9.10.2009 for a sum of Rs.1,25,505/- with Opponents.
6. It is submitted that Opponents vide their letter 4.12.2009 rejected the Complainant’s first claim as well as second claim. Both the claims were rejected on the ground contrary to the terms and conditions of Mediclaim Policy. Both the claims were rejected on the alleged grounds of exclusion clause 4.10 of the policy.
7. It is submitted by the Complainant that her second claim was rejected on the ground inter alia stating that the treatment of Psoriasis by injection Ramicade is an OPD treatment though the injection required to be given in O.T. In view of the nature of treatment, it falls outside the scope of the Health Policy. The Complainant has produced copies of Opponent’s letters dt. 4.12.2009 and 13.11.2009 at Exh. H and I.
8. It is submitted by the Complainant that Opponents have wrongly rejected genuine claim of the Complainant. Therefore, Complainant through her advocate issued notice dt. 25.1.2010 to the Opponents. However, Opponents neither complied with the notice nor sent reply to the said notice. Complainant again through her advocate sent reminder notice dt. 25.2.2010. Then Opponents through their advocate’s reply dt. 12.5.2010 falsely denied its liability to release the legitimate claim of the Complainant.
9. It is submitted by the Complainant that even after completion of the first course of treatment, the Complainant’s condition did not improve as expected. Therefore, the Complainant as per advice of Dr. Trasis agreed for the repetition of the said treatment. Accordingly, the Complainant for the first time was admitted at Criticare Multispeciality Hospital on 27.1.2010 and she was discharged from the hospital on 29.1.2010. Second time, the Complainant was admitted at Criticare Multispeciality Hospital on 15.2.2010 and was discharged on same day i.e. 15.2.2010 and third time the Complainant was admitted at Sunflower Nursing Home on 29.3.2010 and was discharged on the same day i.e. on 29.3.2010. The Complainant has submitted copies of discharge cards dt.29.1.2010, 15.2.2010 and 29.3.2010 issued by Criticare Multispeciality Hospital and Sunflower Nursing Home alongwith complaint at Ex. N, O and P.
10. The Complainant on or about 21.4.2010, she lodged the claim for the expenses incurred for repetition of treatment which included the expenses for hospitalization under claim No.5452101126169 for a sum of Rs.3,29,626/- with Opponent No.2 and submitted all the relevant papers as required.
11. Then Opponents vide their letter dt.28.5.2010 rejected the third claim No. 5452101126169 on the alleged ground of exclusion of clause 4.10. It is submitted that rejection is contrary to the said clause and therefore, Complainant issued notice through advocate dt.7.7.2010 to the Opponents.
12. It is submitted that the Complainant had made single claim on 21.4.2010 for three time hospitalization. Opponents by their letter dt.28.5.2010 rejected the claim for hospitalization on the ground not tenable in law. The Opponents vide their letter dt.28.5.2010, rejected the Complainant’s claim on the alleged exclusion clause 7 of the policy. The Complainant has produced copy of the said letter alongwith complaint at Exh. R. It is alleged that the Opponents have wrongly rejected Complainant’s claim. The Complainant’s first claim is of Rs.3,07,306/-, second claim is of Rs.1,25,505/- and 3rd claim is of Rs. 3,29,626/- i.e. total claim is of Rs. 7,62,437/-. However, the Complainant is restricting her claim to Rs.4,50,000/- as per the policy cover. It is submitted that rejection of the Complainant’s claim on false ground amounts to deficiency in service on the part of the Opponents and therefore, Complainant has filed this complaint.
13. Complainant has requested to direct Opponents to pay a sum of Rs. 4,50,000/- towards the rejection of claims of the Complainant as per the cover under the Individual Health Insurance Policy. The Complainant has further requested to direct Opponents to pay Rs.49,055/- towards interest calculated at the rate of 21% p.a. from the date of the claim i.e. 1.1.2010 on Rs.3,07,306/- and Rs.1,25,505/- and Rs.17,189/- till 15.7.2010. The Complainant has claimed compensation of Rs. 25,000/- from the Opponents towards mental agony, harassment, inconvenience and frustration, Rs. 50,000/- towards advocates’ fees and Rs.5000/- as cost of the case. Alongwith the complaint, Complainant has produced copies of documents alongwith Exh. A to U and affidavit of the Complainant in support of the complaint.
14. The Opponent No. 1 has filed written statement and thereby resisted the claim of the Complainant contending that the allegations made in the complaint are false. Opponent No. 1 has admitted correctness of the contents in the complaint in para 2-A, 2-B and 2-C. However, it is submitted that the Complainant has elected to hospitalize herself at various hospitals for longer period than required with a clear intention to recover cost of meditation and more particularly, the specific drugs viz. Remicade which is very costly.
15. Opponent No. 1 has not admitted contents of complaint in para 2(g), 2(h), 2(i), 2(m), 2(n), 2(o), 2(p), 2(q), 2(r), 2(s), 2(t), 2(u), 2(v) and 2(x). It is submitted that after receipt of the Complainant’s claim alongwith case-papers, Opponent No.1 obtained medical opinion of its panel doctor Ismail B. Bandookwala who vide his letter dt.22.2.2010 opined that the specific drug ‘Remicade’ is administered by intravaneous infusion typically at 6 to 8 weeks interval. The said drug must be given intravenously over two hours. Monitoring would be required during the actual drug administration and for a few hours thereafter. Thus even though hospitalization would have been necessary, it would be only for a couple of hours (at the most six to eight) but definitely not for 24 hours or more as the Complainant has elected to do. Hence the claim of the Complainant is not tenable in the absence of need for 24 hours of hospital stay. As per the terms of the policy, claim was rejected. Opponents have produced copy of the medical opinion given by Dr. Bandookwala alongwith written statement and submitted that there is no deficiency in service on the part of the Opponents and therefore, complaint deserves to be dismissed with cost.
16. Opponent No. 2 was duly served with notice of complaint but remained absent. So exparte order was passed against Opponent No.1 on 1.10.2010.
17. Complainant has filed rejoinder and thereby denied allegations made in the written statement of Opponent No.1. The Complainant has filed written argument. Opponent No. 1 has filed affidavit in evidence of Mr. R.M. Damle, Sr.D.M. and affidavit of Dr. Ismail Bandookwala. Opponent has filed written argument and has produced copies of the case-papers of Criticare Multispeciality Hospital.
18. Heard oral submissions of Ld. Advocate Sneha Bohra for the Complainant and Ld. Advocate Mr. B.L. Kapadia for the Opponent No.1.
19. The following points are arise for our consideration and our findings are as under :
1. Whether the Complainant has proved deficiency in service on the part of the Opponents ? – Yes.
2. Whether the Complainant is entitle for reliefs as prayed for ? Yes, as per final order.
Point No.1 : It is admitted fact that the Complainant had obtained Individual Health Insurance Policy bearing 020300/48/09/97/00000813 dt.12.5.2009 from Opponent No.1. The Complainant has produced copy of the said policy alongwith the terms and conditions at Exh. A.1. It appears that the said policy was for the period from 10.5.2009 to 9.5.2010. It was issued on payment of premium of Rs.14,014/-. Under the said policy, the Opponent has given sum assured of Rs.4,50,000/- to the Complainant. It is not disputed that the Complainant during the relevant period was suffering from Psoriasis and diabetes. For the treatment of Psoriasis, Complainant had approached Dr. (Mrs.) S.S.Trasis (Skin Specialist). According to the Complainant, Dr. Trasis on examination observed that the Complainant was suffering from acute case of Psoriasis and advised the Complainant to admit in the hospital for 3 to 5 days. In support of the contention, the Complainant has produced prescription dt.29.5.2009 given by Dr. Trasis. In the case-papers, it is mentioned that patient is diabetic and suffering from acute Psoriasis going into pustular psoriasis and it was advised to be admitted in the hospital for 3 to 5 days. It appears that some medicines were prescribed. Opponents have not disputed the fact that aforesaid advice was given to the Complainant by Dr. Trasis. According to the Complainant, Dr. Trasis advised to try Biologics injection i.e. Enabrel or Remicade which are developed recently and it has shown good results. It appears from the prescription given by Dr. Trasis that previously she was Head of the Department in Nair Hospital and she is Consultant Dermatologistat of Asha Parekh Hospital, Ramkrishna Mission Hospital, Hiranandani Hospital etc. It appears from the documentary evidence adduced by the Complainant that as per advice of Dr. Trasis, Complainant for the first course of infusion of injection was admitted in ICU at Sarla Hospital on 30.5.2009 and discharged on 1.6.2009. Second time the Complainant was admitted at Criticare Multispeciality Hospital on 17.6.2009 and was discharged on 18.6.2009. Third time the Complainant was admitted again at Criticare Multispeciality Hospital on 8.8.2009 and was discharged on 9.8.2009. It appears that for aforesaid treatment, Complainant incurred expenses of Rs.3,07,306/- and Rs.1,25,505/-. There was no satisfactory improvement in the condition of the Complainant as expected. Therefore, as per advice of Dr. Trasis, Complainant agreed for repetition of the said treatment and she was admitted in Criticare Multispeciality on 27.1.2010 and she was discharged from the hospital on 29.1.2010. Second time, the Complainant was admitted at Criticare Multispeciality Hospital on 15.2.2010 and was discharged on same day i.e. 15.2.2010 and third time the Complainant was admitted at Sunflower Nursing Home on 29.3.2010 and was discharged on the same day i.e. on 29.3.2010 and for the second time Complainant incurred expenses Rs. 3,29,626/-. The Complainant has incurred total expenses for treatment Rs.7,62,437/-. Under the Individual Health Insurance Policy, the Complainant had lodged her first claim on 6.7.2009 with Opponent No.1 under claim No. 545291048581 for a sum of Rs.3,07,306/- and second claim for Rs.1,25,505/- under claim No. 545291091937 on or about 9.10.2009. Both the aforesaid claims were rejected by the Opponents No. vide their letter dt.4.12.2009 and 13.11.2009, copies of said letters are produced alongwith complaint at Exh. H & I vide letter dt.4.12.2009, Opponents have rejected the Complainant’s claim on the ground that the Complainant was admitted with a complaint of Psoriasis for which patient was given injection Remicide. It is OPD treatment and this treatment was given in the Operation Theatre. In view of the nature of the treatment, it false outside the scope of the Health Policies. Hence administration of above referred drug is excluded from the scope of the cover. Hence claim is not payable. In the second letter dt.13.11.2009, Complainant’s claim is rejected under exclusion clause 4.10 stating that the line of treatment needs no hospitalization. This line of treatment and investigation done during the complete course of indoor stay does not warrant hospitalization. Hence this claim stands non-payable under exclusion clause 4.10.
Ld.Advocate for the Complainant has submitted that Opponents have repudiated Complainant’s first two claims under exclusion clause 4.10 of the Individual Health Insurance Policy. It is submitted that Opponents have wrongly rejected the Complainant’s claim under exclusion clause 4.10. Ld. Advocate referred to exclusion clause 4.10 of the Individual Health Insurance Policy which is as under :
“4.10 : Charge incurred at Hospital or Nursing Home primarily for Diagnosis, X-Ray, laboratory examination or other diagnosis studies not considered with or incidental to the diagnosis and treatment of positive existence or presence of any ailment, sickness or injury, for which confinement is required at a hospital/nursing home.”
It is submitted on behalf of the Complainant that in this case, Complainant was suffering from acute form of psoriasis. So she consulted Dr. Trasis and as per her advice, she was admitted in the hospital for treatment of Psoriasis. Injection Remicide was given to the Complainant for treatment Psoriasis in three course as mentioned in the complaint. The Complainant was not admitted in the hospital for medical examination/diagnosis as stated in the exclusion clause 4.10 and therefore, Opponents have wrongly rejected Complainant’s claim on so-called exclusion under exclusion clause 4.10 and it amounts to deficiency in service on the part of the Opponents. It is submitted that after undergoing course of treatment of injection Remicide, there was no satisfactory improvement and therefore, as per advice of Dr. Trasis, Complainant again undergone course of Remicide injection. It is submitted that the Opponents have not disputed the fact that Remicide injection is required to be given in the hospital under observation of competent doctor. Dr. Bandookwala has given expert opinion on behalf of the Opponents. In his letter as well as in his affidavit, Dr. Bandookwala has clearly admitted the said fact. However, according to Dr. Bandookwala, administration of injection Remicide, admission of patient in the hospital is required for at the most takes 6 to 8 hours. 24 hours admission in the hospital is not necessary and patient can be discharged from the hospital within 8 hours. According to the Complainant’s advocate, case-papers on the record disclose that the Complainant was suffering from acute form of Psoriasis and she was also suffering from diabetes. Considering the conditions of the Complainant, Dr. Trasis had advised Complainant admission in the hospital for 3 to 5 days which is clear from the prescription of Dr. Trasis.
Ld. Advocate Mr. Kapadia on behalf of the Opponent No.1 has submitted that admission of patient in the hospital for administering dose or injection of Remicide 24 hours are not necessary. Relying upon the opinion of Dr. Bandookwala, it is submitted that admission of patient in the hospital at the most for 8 hours is sufficient. As per terms of Individual Health Insurance Policy, admission of patient in the hospital for 24 hours is necessary. It is alleged that in order to obtain reimbursement of expensive drugs, Complainant deliberately remained in the hospital for 24 hours and therefore, Opponents have rightly rejected the claim of the Complainant. Ld. Advocate Mr. Kapadia has submitted that the Complainant’s claim is not payable as 24 hours hospitalization was not necessary. However, Ld. Advocate Mr. Kapadia has fairly admitted the fact that the Complainant’s claim was wrongly rejected under exclusion clause 4.10. As mentioned above, exclusion clause 4.10 is applicable only when insured incurred expenses at the hospital for investigation, diagnosis or laboratory examination purpose. In the instant case, the Complainant who was suffering from acute form of Psoriasis, was admitted in the hospital for a treatment of psoriasis and therefore, Opponent has wrongly rejected the claim of the Complainant under exclusion clause 4.10 of the Policy.
Complainant’s second claim of Rs.3,29,626/- was rejected by the Opponent vide letter dt.28.5.2010 under exclusion clause 7. Ld. Advocate for the Complainant has referred to clause 7 recited in repudiation letter of Opponent No.2 dtd.28.5.2010.
“All supporting documents relating to the claim must be filed with TPA within 30 days from the date of discharge from the hospital. In case of post-hospitalisation, treatment (limited to 60 days), all claim documents should be submitted within 7 days after completion of such treatment, infected psoriasis Med mngt.”
It is submitted on behalf of Opponent No. 1 that as per available documents, patient was admitted for acute psoriasis on 27.1.2010 and was discharged on 29.1.2010. The claim has been submitted on 21.4.2010 i.e. more than 30 days after discharge from the hospital. Hence this claim stands non-payable under exclusion clause 7. Ld. Advocate for Opponent No.2 has not pointed out aforesaid exclusion clause 7 in the Individual Health Insurance Policy given to the Complainant. Ld. Advocate for Complainant submitted that Dr. Bandookwala, expert witness of Opponent has also admitted the fact that Infliximab (trade name Remicide) used for treating autoimmune diseases including severe psoriasis. Infliximab is administered by intravenous infusion, typically at 6-8 week intervals and at a clinic or hospital. This period is not counted by the Opponents by rejecting the claim of the Complainant under so-called exclusion clause No.7. In copy of terms and conditions of Individual Health Insurance Policy produced on record there is no mention of exclusion clause No.7 as recited in the letter dated 20.5.2010 of Opponent No.2. In the aforesaid Individual Health Insurance Policy in clause 2.5, expenses incurred for the treatment of Psoriasis are not excluded. From the evidence on record, it appears that Opponent has rejected the claim of the Complainant on unjustifiable grounds and it amounts to deficiency in service on the part of the Opponents. Hence we answer point No. 1 in the affirmative.
Point No. 2 : As discussed above, Opponent No. 1 has given Health Policy to the Complainant for the period of one year and sum assured is stated as 4,50,000/-. Further it reveals from the documentary evidence that for the treatment of psoriasis, the Complainant during aforesaid period incurred total expenditure of Rs.7,62,437/-. However, considering the policy terms and conditions, Complainant has claimed recovery of Rs.4,50,000/- from the Opponents. Considering the facts of this case, we direct Opponent No. 1 and 2 to pay to the Complainant sum or Rs. 4,50,000/-.
Complainant has claimed Rs.49,055/- towards interest on the aforesaid amount till 15.7.2010 which is calculated @ 21% p.a. is exorbitant. Considering the facts and circumstances of the case, we direct Opponent No. 1 & 2 to pay to the Complainant interest @ 9% p.a. on Rs.4,50.000/- from 28.5.2010 till realization of entire amount to the Complainant.
Complainant has claimed Rs.25,000/- as compensation for mental agony, harassment and inconvenience. Complainant’s genuine claim was rejected by the Opponents on unjustified grounds. Therefore, we think just to direct the Opponent No. 1 & 2 to pay Rs.5000/- as compensation to the Complainant for mental agony, inconvenience and harassment.
Complainant has claimed Rs.50,000/- towards advocates’ fees and Rs. 5000/- towards cost of this complaint. Considering the facts and circumstances of the case, we think it necessary to direct Opponent No. 1 & 2 to pay to the Complainant Rs. 10,000/- towards Advocates’ fees and cost of the proceedings. Hence we answer Point No. 2 in the affirmative.
For the reasons discussed above, we pass the following order :
O R D E R
1. Complaint bearing No. SMF/Mum/212/2010 is partly allowed.
2. Opponent No. 1 & 2 shall jointly and/or severally pay to theComplainant Rs.4,50,000/- with interest @ 9% p.a. on the
aforesaid amount from 28.5.2010 till realization of entire amount.
3. Opponent No. 1 & 2 shall jointly and/or severally pay to theComplainant Rs.5000/- as compensation for mental
agony, harassment and inconvenience and caused to the complainant.
4. Opponent No. 1 & 2 shall jointly and/or severally pay to theComplainant Rs.10,000/- towards Advocates’ fees and
cost of this proceeding
