State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd., 24 ... vs Smt. Mili Dutta, Wife Of Shri Niharendu ... on 8 July, 2013
State Consumer Disputes Redressal Commission
State Consumer Disputes Redressal
Commission
West Bengal
BHABANI BHAVAN
(GROUND FLOOR)
31, BELVEDERE ROAD,
ALIPORE
KOLKATA 700 027
S.C. CASE NO FA/480/2012
(Arisen out of Order
dated 29/06/2012 in Case No. CC/10/2012 of District Howrah, Howrah DF)
DATE OF FILING :10.08.2012 DATE OF ORDER: 08.07.2013
APPELLANTS : 1. United India Insurance Co. Ltd.
registered and head office at 24,
Whites Road, Chennai-600 014
2. The
Divisional Manager, Howrah Divisional Office, United India Insurance Co. Ltd.,
4/12, G.T. Road (South), Pin-711 101., District:-Howrah.
RESPONDENTS
: 1. Smt. Mili Dutta,
wife of Shri
Niharendu Dutta,
of 50/2, L. Road, Belgachia, District: Howrah,
Pin-711 108
2. Heritage
Health TPA (P) Ltd. having its office at NICCO House, (5th floor)2,
Hare Street, Kolkata 700 001.
BEFORE
HONBLE MEMBER : Sri S. Coari
HONBLE MEMBER : Sri Debasis
Bhatacharya
FOR THE APPELLANTS
: 1. Ms. Sumita Roychowdhury, Ld. Advocate.
FOR THE RESPONDENT No.1 : 1. Mr. Niharendu
Dutta, Authorised Representative.
________________________________________________________________________
Sri Debasis Bhattacharya , Member
Being aggrieved by the judgment dated 29.06.2012 in Case No. 10/2012 passed by the Ld. District Forum, Howrah, the OP Nos. 1 & 2 thereof have preferred this appeal. By the impugned judgment, Ld. District Forum has allowed the complaint case on contest with costs against the OP Nos. 1 & 2 and ex parte without cost against the OP No.3. The OP No.2 has been directed to pay Rs.2,08,149/- to the Complainant towards her medical expenses as submitted in her mediclaim policy together with interest @ 10% p.a. from 12.07.2010 till realization. The Complainant as a senior citizen is entitled to a compensation of Rs.3 lacs for prolonged harassment perpetrated upon her by the OP No.2. The Complainant is further entitled to a sum of Rs.1,50,000/- as compensation for mental agony, pain and humiliation. She is further entitled to a cost of Rs.10,000/- towards litigation, conveyance for attending the Forum, for attending the office of OP No.2 and the Ombudsman. The OP No.2 has been directed to pay the aforesaid amount within one month from the date of the order failing the amount shall carry interest @ 10 % per annum till full satisfaction.
It is the case of the Complainant/Respondent No.1 in her petition of complaint is that she took Mediclaim Policy from the OP for the period from 04.06.2008 to 03.06.2009 covered under the Health Insurance Gold Policy conditions for a sum insured of Rs.3,00,000/- with cashless benefit of treatment and renewed the policy every year, and lastly for the period from 04.06.2010 to 03.06.2011 vide policy No. 03700/48/10/97/00000065, Identity Card No. HHS 4.0700321871 issued by the OP for cashless treatment. The original policy was issued after thorough medical check up. In the year 2010, when her left knee pain increased significantly, she consulted Dr. P.V.A. Mohandas, Miot Hospitals, Chennai for medical examination and treatment, which hospital is an approved one of the OPs. The said Doctor checked her and after thorough investigations diagnosed her disease on 21.06.2010 as varus deformity with evidence of osteophytosis with patellar femoral arthritis both knees, more on the left side and advised her Total Knee Replacement Left Side. Accordingly, she applied for cashless benefit, but it was denied by the OP No.3 by their Fax dated 23.06.2010. However, she was admitted in Miot Hospitals, Chennai on 24.06.2010 and underwent total left knee replacement on 26.06.2010 and she was discharged on 07.07.2010 and paid all the dues. Subsequently, she sent original bills and documents on 12.07.2010 to the OP No.3 for reimbursement of her hospital expenses of Rs.2,08,149/-, but the OPs delayed to settle the claim. On 05.10.2010, OP No.2 sent an e-mail asking the Complainant for submission of bed head tickets of treatment from the hospital. The Complainant requested the hospital for sending the bed head tickets, against which it enquired from the OP No.2 by an e-mail dated 24.11.2010 about what exactly they required regarding Bed Head Tickets to process the claim of the Complainant, and thereafter sent all the lab reports and also allowed inspection of the Indoor Case Papers, as the same were not provided to anyone, by their e-mail dated 11.01.2011. But, the OP No.2 refused to arrange inspection of the necessary records from the Miot Hospitals, Chennai on the plea of their unavailability of any infrastructure to send any person for inspection of the said medical papers from the hospital. Thus, the OPs repudiated the claim by a letter dated 20.04.2011 on the ground of pre-existing disease under 4.1 Exclusion Clause of the Policy without legal proof thereof. Accordingly, the matters were brought to the notice of the Office of the Insurance Ombudsman, Kolkata by lodging a complaint against the OPs by letters dated 26.04.2011 and 23.05.2011. The Honble Insurance Ombudsman, Kolkata dismissed the complaint on 22.11.2011 after a hearing of both the parties, which was intimated by the Office of the Insurance Ombudsman by their letter dated 05.12.2011. Accordingly, this complaint case.
On the other hand, the case put forward by the Appellant No.2/OP No.2 in its W.V. is that based upon the reports of the medical experts, the Complainant, even prior to inception of first policy, i.e., prior to 04.06.2008, had pre-existing osteoarthrosis of both knees joints and was thoroughly aware of the said disease/condition/symptoms, etc., and remained untreated in order not to be attracted by Clause 4.3 of the said policy, but soon after expiration of first two years of the policy, she went for operation. Based upon opinion of the specialist orthopedic surgeon, the ailment like arthritis of the knees along with deformity takes considerable time, i.e., even several years to reach the stage where knee replacement becomes the ultimate option and that usually the said symptoms and/or disease is firstly treated conservatively for a considerable period of time before deciding on surgical measure. Further, Dr. Mohandas of Miot Hospitals, Chennai diagnosed the disease/symptom in the discharge certificate, but never opined about the age of the disease and/or symptoms. But, per contra, two specialist orthopedic surgeons opined about the age of the disease of the Complainant and it was existing even prior to inception of the first policy. The trickery of expression by the authority of the Miot Hospitals prompted the OP to deny cashless benefit to the Complainant at the first instance albeit the entire claim was not at all repudiated at that stage granting an option to the claimant to file requisite documents at a later stage and to get disbursed under the said policy subject to its terms and conditions. To dispel any cloud, the OP sought for expert opinions and considered that the bed head tickets could be determinant factor for inferring the age of the disease. This process consumed sometime. However, even after all these, the OP secured two medical expert opinions which opined about the age of the disease and both opined about the pre-existence of the disease of the Complainant even prior to inception of the policy, and then the subject claim was repudiated and thus the said repudiation is legal and valid and is based upon proper prudence. The Ld. Insurance Ombudsman has dismissed the complaint after hearing both the Complainant and the OP. It is reiterated that the repudiation of the claim made by the OP is legal, rational and is purely based upon the medical opinions of the specialist doctors qua the age and duration of the disease. On the contrary, the Complainant filed the discharge certificate of Miot Hospitals from which the diagnosis of the disease is only evident but not the age of the disease and did not produce any medical opinion to countermand the opinions of the specialist doctors of the OP and that the onus of proving the age of the said disease of the Complainant as not pre-existing lies upon her. Thus, it has prayed for dismissal of the complaint case.
It is to be considered if the impugned judgment suffers from any kind of anomaly so as to reverse the same.
Decision with reasons.
It is the contention of the Ld. Advocate for the Appellants that the disease in question was pre-existing in nature at the time of making the first Mediclaim Policy on 04.06.2008, for which she waited for the two-year breather as stipulated in Exclusion Clause 4.3 of the Policy, to make a total knee replacement of the left side, in as much as such a deformity cannot occur at a small space of time and the reports of the two expert Doctors are apparent on the matter. So, the claim was rightly repudiated by the Insurance Company, so also validly upheld by the Ld. Insurance Ombudsman. In support of her case, the Respondent No.1 did not file Bed Head Tickets (BHT) of the concerned hospital to show non-existence of such a condition of deformity earlier to the operation. Further, there have been double or tipple compensations awarded by the Ld. District Forum in favour of the Respondent No.1, as interest was also imposed in respect of compensatory amount awarded, which interest is also a compensation and that the compensation is on the higher side. She has cited two decisions in this respect, both of the Honble National Commission, reported in IV (2006) CPJ 213 (NC) and III (2006) CPJ 389 (NC).
Respondent No.1, however, has made out that only upon X-ray of the knees, the Doctor concerned of Miot Hospitals could know the necessity for total replacement of her left side knee. There may be symptoms or suffering, which may not be known to the patient earlier. It is peculiar that the two Doctors, who gave out reports to the Insurance Company, did not see the patient at all. He also submitted that it is not at all required that the deformity necessitating knee replacement is to exist for 6/7 years. It is the medical version that many people have knee arthritis, but it can be difficult to know when the right time to have a knee replacement surgery is. He has also criticized the reports of Dr. Raj Chhajer dated 20.09.2010 and that of Dr. P.K. Mandal dated 12.11.2010, being based on clinical observations. Further, the report of Dr. Chhajer does not contradict anything against the claim of the Complainant as he opined that the condition of the patient needs some months if not years to develop, which is exactly the case of the Respondent No.1. In the matter of Dr. Mandal, it is simply based upon presumptions, which cannot hold any real ground. So, it is a shameless effort of the Insurance Company to imagine of pre-existence of a disease more than two years ago in order only to repudiate the claim. He has further made out that at the time of the inception of the policy, the only pre-existing disease has well been spelt out and incorporated in the policy document as vision problem, but there was no further medical check-up at the time of subsequent renewals of the Mediclaim Policy by the said Insurance Company. It was unreasonable and previously unheard of for the Insurance Company to hold that the Respondent No.1 remained untreated for first two years to bypass the provision of Clause No. 4.3 of the policy. There is no compulsion on the part of a Doctor which prevents him to advise the patient for total knee replacement operation at the first detection itself. Last but not the least, the Consultant Surgeon is Dr. P.V.A. Monhandas, a recipient of Padhmashri award, who conducted the operation.
At first, the denial of authorisation for Cashless Hospitalization (CCN: HH471100366) was made by the TPA concerned, being the Respondent No.2, in appeal unrepresented, addressed to Miot Hospitals by a fax dated 23.06.2010 stating that looking at the inception date of policy (04.06.2008) and severity of the disease (B/L OA Knee Joint as she has varus deformity both legs), so they regret their inability to sanction the cashless authorization. Record shows that the review of the Medical Officer of this concern dated 16.07.2010, bearing the signature presumably of the Medical Officer dated 29.07.2010 with the final opinion that 04yrs waiting period for Age related OA. Reject under Clause 4.1, and opined that the claim is non-admissible. There is no explanation how he arrived at such a conclusion basing on Clause 4.1 of the Policy. In fact, the said Exclusion Clause 4.1 rather go in favour of the Respondent No.1 if the totality of the same is considered. It stipulates that, Any pre-existing condition(s) as defined in the Policy, until 48 months of continuous coverage of such insured person have elapsed, since inception of his/her first Policy with the Company. Pre-existing Condition/Disease definition Any condition, ailment or injury or related condition(s) for which insured person had signs or symptoms, and/or were diagnosed, and/or received medical advice/treatment, within 48 months prior to his/her first Policy with the Company. There is no proof, whatsoever, from the side of the Insurance Company in support of such definition as against the Respondent No.1. Two other medical opinions relied upon by the Insurance Company do also fall short for the case of repudiation. Dr. Raj Chhajer only mentioned that the said condition of the patient needed some months, if not years, to develop, and it does not implicate the cause of pre-existing clause. The other report of Dr. Prasanta Kumar Mandal is full of presumptions that she had pre-existing osteoarthrosis of both knee joint prior to 04.06.2008 and was treated conservatively for chronic osteoarthirosis of both knee joints and was treated conservatively and when she could not endure the pain, she had no choice but to go for total knee replacement. It is rather amusing how he arrived at the date of 04.06.2008 before which the pre-existing problem mentioned by him arose with the patient and what is the basis of his further report that she was treated conservatively, etc. It is pure hypothesis and cannot be relied upon at any score. It is worthwhile to mention that both these Doctors did not ever saw the patient before signing such reports. It is not understood as to the handicap of the Insurance Company to refer such a complicated issue/point to the concerned doctor of the Miot Hospitals who actually saw and treated the patient for his views on the pre-existing nature of the disease. In any case, the report of Prof. P.V.A. Mohandas of Miot Hospitals dated 21.06.2010 shows that he has seen the lady who complains of pain in both knees, more on the left side. She is not a known diabetic. She is hypertensive and is under control. On examination, he found that she has varus deformity both knees. There is painful restriction of movement. X-ray of the knees shows evidence of narrowing of the joint space, lipping of the articular margins with evidence of osteophytosis with patellar femoral arthritis both knees, more on the left side. He had advised Total Knee Replacement left side. This is the first observation on the patient by the said Doctor. His discharge summary dated 07.07.2010 mentions as diagnosis, (i) arthritis of both knees, (ii) diabetes mellitus, (iii) systemic hypertension, (iv) dyslipidemia. History of the patient shows she got admitted with complaints of pain and deformity of both knees, more on the left knee with difficulty in walking. She is a known case of hypertension and on regular medications. These go to show that she has been a patient of hypertension and on regular medications and the same is under control, and nothing more and nothing less. There is no point in the Doctors reports on which the claim of the Respondent No.1 can be repudiated under the Exclusion Clause of pre-existing disease. In e-mail dated 05.10.2010, Mr. G.P. Roy, Divisional Manager, Howrah Divisional office of the Insurance Company, Respondent No.1 was informed that her claim is under process and the matter was under T.P.A. and subsequently the Howrah Divisional office has called for all the details of the medical documents held under the custody of T.P.A. and having gone through the details, they have sent the claim file for the opinion of the medical expert, who advised to send copies of Bed Head Tickets of treatment where she has been treated and that will expedite the process of claim and was requested to send the copies of the Bed Head Tickets of her treatment at the earliest. By another e-mail dated 24.03.2011, the same person told her that they appreciate her effort in sending e-mails to the Miot Hospitals, Chennai but not that does not suffice so as to fulfill their requirement, and that it is incumbent upon her to supply them with the said Bed Head Tickets and then do not comment how to enforce it and they do not have infrastructure so as to send person for inspection of the said medical record. Before that, the said official wrote to the Miot Hospitals for the Bed Head Tickets, which was answered firstly by e-mail dated 24.11.2010 stating that, The patient Mili Dutta had treatment in their hospital. While applying for reimbursement, you have requested to provide Bed Head Tickets. Kindly forward what exactly you required to process the claim. By another e-mail dated 11.01.2011, Miot Hospitals informed the Respondent No.1 and the said official of the Insurance Company that for the said patient, they have already given the discharge summary and investigation report. Now they have enclosed all the lab report for patient. Also they regret to say that the Indoor Case Papers were not provided to anyone. But they can fix an appoint to visit to their hospital for an inspection of the same from 10.00 am to 05.00 pm. This part was not performed/attended by the Insurance Company. It is the very proposition of the hospital that the indoor case papers are not provided to any one. It is quite obvious and natural not to part with the Indoor Case Papers of the patient. Ld. Advocate for the Respondent No.1 mentioned that the office of the Appellant No.1/OP No.1, i.e., the Registered and Head Office of the said Insurance Company is situated at Chennai and so there was not any sufficient reason for the Insurance Company not to go to inspect the papers, if required at all. Such a needful could well have been taken by the Insurance Company in this matter which is within their very reach. There is no discrepancy in the hospital papers dated 21.062010 and 07.07.2010, basing upon which the repudiation could be made on the plea of pre-existing disease. There is no proof whatsoever that the hospital was biased towards the patient and against the Insurance Company. The Insurance Company could well procure the necessary informations from the Indoor Case Papers of the hospital as its Head Office is situated at Chennai. It is beyond apprehension as well as unusual, unacceptable and impracticable that one would prefer to take Mediclaim policy with a view to making operation in the third year, withstanding pains and agony for not doing so for long two years. The whole case of the Appellants is based on suspicion, doubt, surmise and conjecture and without any kind of legal proof in the matter. Suspicion, however, strong cannot take the place of legal proof. There is no evidence of any treatment taken by the Respondent No.1 for such disease prior to her hospitalization.
In this respect, the case of Smt. Harjeet Kaur vs. National Insurance Company & Ors., before the Honble National Commission, Revision Petition No. 1922/2005, decided on 17.04.2009, reported in 2009 (4) CPR 36 (NC), referred by the Respondent No1. is befitting, only with the exception that whereas in that case the Ld. District Forum allowed the complaint of the said Petitioner and directed the Insurance Company to pay the Complainant Rs.1,00,000/- (Rupees one lakh) with interest at 9 % and Rs.1,00,000/- (Rupees one lakh) as cost, which was nullified by the State Commission. It was held therein that no record is produced by the Insurance Company to prove that the insured was aware of the fibroids in her uterus. No record of her treatment in any hospital or clinic prior to the issuance of the insurance cover has been produced. Further, no affidavit of treating Doctor that the insured was treated by the Doctor for menorrhagia has been placed on record. There is no evidence to prove that she was aware of this disease. Large number of persons may be or may not be suffering from certain disease, they will not be aware of the disease. It was approvingly quoted therein a judgment of the Honble National Commission in Praveen Damani vs. Oriental Insurance Co. Ltd., Revision Petition No. 1695 of 2005, decided on 03.10.2006, wherein the Honble National Commission paid special attention to the Exclusion Clause 4.1 of the policy which states that it is not relevant whether the insured person had knowledge of the existence of a disease or not. If symptoms of the disease existed before the effective date of insurance and even if the insured person was not aware of these symptoms, the Insurance Company was not liable to pay any claims arising out of the condition. It was held therein that This policy not a policy at all as it is just a contract entered only for the purpose of accepting the premium without the bona fide intention of giving any benefit to the insured under the garb of pre-existing disease. Most of the people are totally unaware of the symptoms of the disease that they suffer and hence, they cannot be made liable to suffer because the insurance company relied on their Exclusion Clause 4.1 of the policy on a mala fide manner to repudiate all the claims. No claim is payable under the medi claim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is not aware of. The Commission further held :
In hindsight, every one realizes much later that the symptoms were indicative of a disease. But common people are not at all familiar with the medical knowledge and so they cannot diagnose their own diseases. If they were expected to be so aware of their medical condition at all times, there would be no use of insurance policies.
Accordingly, it was held therein that the ratio of the above judgment is squarely applicable to the case on hand. Therefore, the Revision Petition was allowed by setting aside the order of the State Commission and confirmed the order of the District Forum. The Insurance Company was also to pay Rs.10,000/- (Rupees ten thousand) as cost of making the Complainant fight her case up to the level of the National Commission. Respondent No.1 has further relied upon a decision of the Honble National Commission in the case of LICI vs. Sri Anil Kumar Rastogi, Revision Petition No. 278/2009, decided on 11.09.2009, reported in 2009 (4) CPR 130 (NC), where also the decision of the Honble National Commission in Praveen Damani vis. Oriental Insurance Company Limited (supra) was quoted. It was held therein that If a person mentions at the time of having bypass surgery regarding any ailments that he might have felt, sustained discomfort in health and being noted by the doctors does not mean that he is already aware of the disease. Had he been aware of the heart disease, he would not have waited endlessly and put himself to further risk of life and would have rushed to get treatment immediately. When the patient is not aware of the disease or the symptoms of the same that would affect him, or the doctors are not aware of the symptoms of the disease and the insurance company does not do any medical check up before revising the policy, it cannot be said that there was suppression of material facts by the respondent.
In all such facts and circumstances of the case, the findings of the Ld. District Forum are proper and justified. It is to be said that the Insurance Company repudiated the claim on a sheer lame excuse.
In the matter of compensation doubly or triply as per submission of the Ld. Advocate for the Appellants, it is found that one compensation of Rs.3,00,000/- awarded only on the ground that the Complainant being a senior citizen, is not a wholesome one, so also the accompanying interest @ 10% p.a., which is accordingly modified.
The appeal is accordingly disposed of but without any order as to costs. The impugned judgment is modified to the extent as below:
I) OP No.2 be directed to pay Rs.2,08,149/- (Rupees two lakhs eight thousand one hundred fortynine) to the Complainant towards her medical expenses as submitted in her medicaim policy together with interest @ 10% p.a. from 12,07.2010 till realization.
II) The Complainant is further entitled to a sum of Rs.1,50,000/- (Rupees one lakh fifty thousand) as compensation for mental agony, pain and humiliation.
III) She is further entitled to a cost of Rs.10,000/- (Rupees ten thousand) towards litigation and conveyance costs.
However, the OP No.2 is given time of 45 days to comply with the above directions.
A copy of this judgment along with the LCR be forwarded to the Ld. District Forum, forthwith.
MEMBER MEMBER