PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        The present complaint is field by the first Complainant which is a voluntary consumer organization on behalf of the second Complainant who is the actual consumer.  In this complaint it is prayed that the Opposite Party be directed to renew the policy in accordance with the original terms and conditions when the insurance coverage first incepted.  It is further prayed that the Opposite Party be directed to pay Rs.87,143/- for the treatment of ERYTHRODERMIC, PSORIASIS alongwith interest from 17/02/2009 till actual payment.  It is also prayed that the Opposite Party be directed not to repudiate subsequent claim for the said treatment by following procedure of “Infliximob Induction Therapy” on the ground that the treatment would have been administered on OPD basis.  The Complainants have also prayed for compensation of Rs.10,000/-towards the harassment caused to the Complainant No.2 and cost of this proceeding.     

2)        The Complainants have alleged that the Opposite Party had caused unfair trade practice unilaterally surreptitiously and illegally changing the terms and conditions of the policy.  It is alleged that the second Complainant, his wife, daughter and son, have been continuously insured with the Opposite Party since 21/02/2002 onwards.  The copy of policy for the year 2006-07 alongwith the terms and conditions is annexed as Exh.‘A’.  According to the Complainant, the Opposite Party illegally changed the terms and conditions of the policy at the time of renewal and the said fact came to the knowledge of the Complainant when the claim had to be lodged during the policy period 21/02/09 to 20/02/2010.  The copy of the policy for the period 2009-2010 is annexed as Exh.‘B’.

 3)        It is the case of the Complainants that the Opposite Party has made several changes to the detriment of the insured persons and the said changes made in the above two referred policies on its comparison are as under –

            1)  Restriction of a maximum of Rs.2 Lacs or 70% of the sum (whichever is

                 lower) in respect of claim for major illness such as, cardiac surgery, cancer surgeries, brain tumor surgeries, pace-maker implantation for sick sinuous syndrome, hip replacement and knee joint replacement is imposed by putting rubber stamp endorsement on the new policy.

2)     In the schedule of the new policy it is noted that there would be withdrawal of the accrued no claim bonus.

3)     As per clause 1.2 of the new policy limitations for the expenses in respect of cataract, hernia, hysterectomy, major surgeries, and pre & post hospitalization expenses are imposed.

4)     As per clause 11 of the new policy the term “reasonable and necessary expenses” would be considered which will favour to the Opposite Party,

 4)        It is the case of the Complainants that the policy has to be renewed on identical terms and conditions as embodied in the original contract of the insurance when cover incepts for the first time.  It is contended that thereafter no changes can be made at the time of renewal of the policy except with the express consent of the insured as per the observations of the Hon’ble Supreme Court judgement in the case of Bimal Krishna Bose V/s. United India Insurance Co. Ltd. (III) (2001) CPJ 10 (SC).

 5)        It is alleged that during the tenure of Mediclaim Insurance Policies in Percy Gadiwalla, the son of the second Complainant was found to be suffering from “ERYTHRODERMIC, PSORIASIS”.  The said ailment was diagnosed on 02/09/08.  According to the Complainants the treatment for the same comprises of administering “Infliximob Induction Therapy” where a drug/medication has to be intravenously injected alongwith a drip.  It is submitted that the drug used is known to be very risky and can cause an adverse drug reaction which can even result in the death of the patient.  It is submitted that the said therapy has administered in the Intensive Care Unit (ICU)

It is submitted that the claim of the first three doses “Infliximob Induction Therapy” were passed by the Opposite Party without any hassle or problem.  The copy of said claims passed by the Opposite Party are marked as Exh.‘C’.  It is submitted that the Opposite Party therefore, ought to have passed the disputed claim of Rs.87,143/-of the dose in question of the same. “Infliximob Induction Therapy”.  The Opposite Party repudiated the claim of forth dose on the ground that no hospitalization was required of the said “Infliximob Induction Therapy” and it could have been administered as outpatient basis.  The copy of the said claim is marked as Exh.‘D’ and the repudiation letter dtd.17/08/09  is at Exh.‘E’.  The son of the Complainant by letter dtd.31/08/2009 pointed out to Opposite Party that the claims for the same therapy had been sanctioned earlier which is marked as Exh.‘F’

 6)        The second Complainant also approached the treating Doctor, Dr. S.Z. Arsiwala, for a clarification as to whether hospitalization was necessary or not for the treatment provided to his son as referred above or the same could have been given on OPD basis.  The said doctor gave necessary clarification stating that the reason why hospitalization was required and why the therapy had to be administered in the ICU.  The copy of the clarification given by the treating doctor dtd.01/10/2009 is annexed as Exh.‘G’. It is submitted that the Complainant No.2 had submitted the same to the Opposite Party to enable it to review the claim in the light of representation made by the Complainant. It is contended that the Opposite Party even then on 27/10/09 reiterated that the claim had been properly repudiated without bothering to consider the points raised in the representation made against the rejection of the claim of the Complainant.  The copy of the said reply of Opposite Party dtd.27/10/09 is at Exh.‘H’.

 7)        It is thus, submitted that the repudiation of the claim is malafide and constitutes deficiency in service. The Complainants have therefore, prayed for the reliefs as mentioned in para 1 of this order.

8)        The Opposite Party contested the claim by filing written statement and denied that the Opposite Party has indulged in any unfair trade practice.  It is denied that the terms of the insurance policy as alleged by the Complainants have been unilaterally and surreptitiously changed. It is contended that the Complainants have willfully not produced the copy of the insurance policy issued by the Opposite Party for the period 21/02/07 to 20/02/08 for the reasons best known to them.  It is contended that in view of the nature of illness suffered by the Complainant’s son the treatment of the said illness was not required hospitalization and thereby the hospitalization stay was not justified therefore, the Opposite Party rightly repudiated the said claim under Exclusion No.4.8 and 4.10 of the Insurance Policy.  It is contended that the Opposite Party though paid a sum of Rs.83,321/- to the Complainant as it was justified.  However, by virtue of the said payment it cannot be construed by the Complainants to be a precedent as a matter of right to receive payment of future claims.  It is thus, submitted that Opposite Party has rightly repudiated the claim of the Complainant of Rs.87,143/-.  It is contended that the Opposite Party does not concur with the view or clarifications give by the Dr. S.Z. Arsiwala.  The Opposite Party therefore, did not admit its liability as regards the reliefs claimed by the Complainant against it.  The Opposite Party has therefore, prayed to dismiss the complaint with cost. 

 9)        The Complainant and the Opposite Party filed their affidavit alongwith the complaint and written statement respectively. Both the parties filed their written arguments.  We heard Jehangir Gai, the representative of the Complainant No.1 and Shri. B.L.Kapadia, the Ld.Advocate for the Opposite Party.

 10)      While considering the rival contentions raised by both the parties regarding the reliefs claimed in this complaint first of all it is necessary to consider whether the prayer made by the Complainants that the Opposite Party be directed to renew the policy in accordance with the original terms and conditions when the insurance coverage first incepted for that it is necessary to be considered the grievances put forth by the Complainant in that regard.  The Complainant has brought to the notice of this Forum that while issuing the policy for the period 21/02/2009 to 20/02/2010, the Opposite Party has admitted that “Terms, conditions and clauses attached as per respective individual schemes Date of Proposal and Declaration: 21/02/2002.”  However, on the said policy the rubber stamp is affixed in which it is mentioned that “ The Following Deceases are Classified as “Major Disease” coming within the restriction  of Rs.2 Lacs Max. or 70% of the SI  1. Cardiac Surgeries, 2. Cancer Surgeries, 3. Brain Tumor Surgeries, 4. Pace-Maker Implantation for Sick, Sinus Syndrome, 5. Hip Replacement, 6. Knee Joint Replacement.” Besides this in the earlier policy which is placed on record at Exh.‘A’ for the period 21/02/2006 to 20/02/2007, there is mention that the Policy Inception Date 21/02/2002.  In the said policy there was separate column in the schedule CUM BONUS AMT. and below that the bonus amount to each individual appears to have been shown separately @ 20%.   Whereas, in the policy for the period 21/02/09 to 20/02/2010 in the schedule of individual policy the said column appears to have bee deleted.  The copy of the said policy is at Exh.‘B’.  It also appears that in the earlier policy there was no defining term regarding “REASONABLE AND NECESSARY EXPENSES and the said policy was consisting of only 9 clauses, however, in the policy later on issued by the Opposite Party for the period 2009-10.  The Opposite Party has introduced 11 clauses containing the term “REASONABLE AND NECESSARY EXPENSES.” The Complainant in this complaint has challenged the said changes made by the Opposite Party in the policy issued for the period 2009-10.  The Opposite Party has though contended that the same has not been unilaterally surreptitiously or illegally made changes to the detriment of the Complainants.  In our view the said contention raised by the Opposite Party is devoid of merits in view of the observations of the Hon’ble Supreme Courts in the case of Bimal Krishna Bose V/s. United India Insurance Co. Ltd., reported in III (2001) CPJ 10(SC) wherein it is held that -

 “A renewal of insurance policy means repetition of the original policy.  When renewed, the policy is extended and the renewed policy in the identical terms from a different date of its expiration comes into force.  In common parlance, by renewal, the old policy is revived and it is sort of a substitution of obligations under the old policy unless such policy provides otherwise.  It may be that on renewal, a new contract comes into being, but the said contract is on the same terms and conditions as of the original policy.”

Considering the aforesaid observation of the Hon’ble Supreme Court and as pointed out in the policy issued for the period 2009-10 there is specific mention that “Terms, conditions and clauses attached as per respective individual schemes, Date of Proposal and Declaration : 21/02/2002” and the same has been signed for an on behalf of the Opposite Party through its authorized signatory in favour of the Complainants. Thus, we hold that the Opposite Party has acted arbitrarily and tried to modify the terms, conditions of the earlier policy issued to the Complainants and that too without the consent of the Complainant, which is apparently illegal on the part of the Opposite Party.  We therefore, hold that as regards the reliefs claimed by the Complainants in para 4(a) to (d), the Opposite Party has indulged in unfair trade practices.  We thus, hold that the Complainants are entitled for the direction against the Opposite Party to renew the policy in accordance with the original terms and conditions as per the insurance coverage first incepted i.e.21/02/2002.

 11)      While considering the reliefs claimed in the prayer clause (b) & (c) of the complaint it is also necessary to be taken into consideration that the Opposite Party has earlier allowed the claim lodged by the same Complainant on 17/11/08 regarding the treatment obtained by him from Dr. Sehnaz Arsiwala of Saifi Hospital, Mumbai and issued cheque for Rs.83,321/- on 18/12/2008.  However, the Opposite Party vide letter dtd.17/08/2009 repudiated the claim of Rs.87,143/- for the similar treatment obtained by the patient Percy Gadiwalla (son) of the Complainant for the period 26/06/09 to 27/06/09 from the same doctor and the hospital by referring the exclusion clause 4.10.  In the repudiation letter it is informed to the Complainant that the patient is suffering from the complaint of ERYTHRODERMIC, ESORIASIS for which injection remicade was administered.  But this treatment can be given on out patient basis and there was no hospitalization required. It appears that thereafter, the Complainant had submitted the clarification given by Dr Arsiwala who had provided the treatment to the son of the Complainant then also the Opposite Party vide Exh.‘H’ had informed that their grievance department has come to the conclusion for the treatment provided to the patient the hospitalization stay was not justified hence; the claim stands non payable under exclusion clause 4.8.   The Opposite Party contended that it had in the past paid a sum of Rs.83,321/- to the Complainant No.2 since it was payable within the ambit of the policy terms and conditions and further contended that by virtue of the said payment having been made it cannot be treated as precedent to pay other claims which do not fall within the scope of the policy and therefore, the repudiation of the claim of Rs.87,143/- is justified.  In our view the Opposite Party has raised contradictory contentions in respect of the similar claim preferred to the Opposite Party by the Complainant and on that count we hold that the Complainant No.2 is entitled for the treatment charges of Rs.87,143/- from the Opposite Party.  The Opposite Party in one breath has conceded that the payment made of Rs.83,321/- was payable within the ambit of the policy terms and conditions and later on tried to shirk its responsibility that same does not fall within the scope of the policy can be said arbitrary. The Complainant has also placed on record the certificate issued by Dr. Arsiwala, dtd.01/10/09 who had provided the treatment to Mr. Percy Gadiwalla.  In the said certificate he has clarified the necessity of hospitalization for 24 hrs.  He has certified as under –

a.                     “This is to state that Mr. Percy Gadiwalla a case of acute erythrodermic psoriasis was hospitalized on 02/09/09 for the same.  The said disease was confirmed by skin biopsy.

         Patient was started on injection Renucade for the same.

         This is a biologic therapy – Inflixi is used for treatment of moderate to server type of Psoriasis. The injection has to be administered intravenously over 3 hrs and monitored for vital parameters and ECG  monitoring throughout the injection for anaphylactic reactions, breathlessness, bronchospasm and rash. Since this requires precision and accuracy on part of nursing and medical staff, the injections are administered in the hospital and preferably the intensive care unit.  The patient needs to be observe(d) for a period of 2-3 hrs with ECG monitoring and vial parameters after the injection and vigilant physician care is essential.

         Please provide medical literature evidence to state that this injection is very safe if administered in the OPD

         This administration are conducted in the ICU of the hospital in the best interest of the patient’s health to avoid any unforeseen acute anaphylaxis that may occur if the patient is in OPD.

         In episodes of severe anaphylaxis a patient is under vigilant care an(d) unforeseen complication is better handled.

Hope you will comply, as this is a genuine case and grant him his due !”

            From the above certificate issued by the expert Doctor who has provided the treatment to the son of the Complainant, we hold that the rejection of the claim made by the Opposite Party under exclusion clause 4.8 and 4.10 is unjustifiable.  In our candid view, the Opposite Party ought to have allowed the claim for “Infliximob Induction Therapy” for treatment of “erythrodermic psoriasis” for Rs.87,143/-.  We also hold that in view of the above discussion the claim made by the Complainants in prayer clause (c) is also justifiable.  The Complainants have claimed interest from 17/09/09 till actual payment and compensation of Rs.10,000/- towards the harassment caused to the Complainant No.2 and cost of this proceeding.  While considering the said claim we hold that the Opposite Party is liable to pay interest @ 9% p.a. from 17/09/2009 on the amount of Rs.87,143/- till its actual realization as the Opposite Party had earlier passed the claim of the Complainant No.2’s son for the same treatment and later on rejected the same under the garb of exclusion clause 4.8 and 4.10 which are not all applicable in the case of Complainant No.2.  The Opposite Party is liable to pay compensation to the tune of Rs.5,000/- for the unfair trade practice adopted as discussed above in respect of Complainant No.2.  The Opposite Party is liable to pay Rs.5,000/- towards the cost of this proceeding to the Complainants.  In the result we pass the following order –

                                                                                               O R D E R

i.                    Complaint No.148/2010 is partly allowed against Opposite Party.

ii.                 Opposite Party is directed to renew the policy in favour of the Complainant No.2 in accordance with the original terms and conditions as per the insurance coverage first incepted i.e. on 21/02/2002.

iii.               Opposite Party is directed to pay Rs.87,143/- (Rs. Eighty Seven Thousand One Hundred Three Only) towards the claim of treatment of “Infliximob Induction Therapy” by way of “erythrodermic psoriasis” with interest @ 9% p.a. from 17/09/2009 till actual payment.

iv.       The Opposite Party is directed not to repudiate subsequent treatment  of  “Infliximob  Induction  Therapy”  by  way  of            “erythrodermic psoriasis”  in  respect of Complainant’s son Percy Gadiwalla on the ground  that  the treatment would  have been administered on OPD basis.

v.                  The Opposite Party is directed to pay Rs.5,000/- (Rs. Five Thousand Only) as compensation towards unfair trade practices adopted in respect of Complainant No.2.

vi.               The Opposite Party is directed to pay cost of Rs.5,000/- (Rs. Five Thousand Only) to the Complainants.  

vii.             The Opposite Party is directed to comply with the above order  within one month from the date of service of this order.  

viii.          Certified copies of this order be furnished to the parties.