State Consumer Disputes Redressal Commission
Niac Ltd. vs Suman Devi on 4 December, 2015
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.964 of 2012 Date of Institution: 20.07.2012 Date of Decision: 04.12.2015 1. New India Assurance Company Ltd., Regional Office, SCO No.36-37, Sector 17-A, Chandigarh through its Assistant Manager (Legal). 2. The New India Assurance Company Limited, Near Sunil Cinema, Abohar-152116, Tehsil Abohar, District Fazilka, through its Branch Manager. ...Appellants/Opposite Parties Versus Suman Devi, aged 56 years, wife of Mahavir Singh Bhadoo, resident of Village Waryam Khera, Tehsil Abohar, District Fazilka ..Respondent /Complainant First Appeal against order dated 28.05.2012 passed by the District Consumer Disputes Redressal Forum, Ferozepur Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri. H.S. Guram, Member Present:-
For the appellants : Sh. B.S Taunque, Advocate For the respondent : Sh.Munish Goel, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellants of this appeal (the opposite parties in the complaint) have directed this appeal against the respondent of this appeal (the complainant in the complaint), challenging order dated 28.05.2012 of District Consumer Disputes Redressal Forum Ferozepur, accepting the complaint of the complainant by directing the OPs to pay the amount of Rs.1,02,500/- to complainant. The instant appeal has been preferred against the same by the OPs now appellants.
2. The complainant Suman Devi has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that she took medi-claim insurance policy for Rs.4,77,500/- from OPs inclusive cumulative bonus, along with her husband Mahavir Singh Bhadoo and both of them were insured under the policy, which was applicable for the period from 07.06.2010 to 06.06.2011, vide policy bearing no.360703/34/10/11 00000016. The complainant has been getting the insurance cover from the last five years and has not claimed any amount and is entitled to no claim bonus, which accrued thereon. The complainant paid the amount of Rs.16,300/- against the said policy. The complainant developed serious problem and body parts of the complainant started trembling and the complainant went to Trivendrum for medical treatment and was admitted in Sree Chitra Tirumal Institute for Medical Sciences and Technology. She got admitted and was treated from 25.04.2011 to 18.05.2011 by the above institute for Advanced Parkinsons disease with motor fluctuations and dose limiting L Dopa induced Dyskinesia disease. The complainant submitted claim of Rs.5,82,265/- to OPs and OPs settled the claim of Rs.3,75,000/- and the cheque dated 30.06.2011 drawn on Union Bank of India was received by the complainant. The OPs made unreasonable deductions out of the claim amount i.e. to the tune of Rs.1,02,500/-. The complainant incurred the expenses of Rs.5,82,265/- on her treatment, whereas the insured amount was of Rs.4,77,500/- and the claim is to be restricted to the amount of sum insured i.e. Rs.4,77,500/-, but the complainant received less amount of Rs.3,75,000/- from the OPs. OPs made unreasonable deductions out of the claim amount to the extent of Rs.2800/- as donor room charges non-payable as per entitlement, Rs.360 as neuropsychology evaluation charges non payable, Rs.660/- as HIV and HBSAG non-payable, Rs.240/- as grapes non-payable, Rs.2,14,370/- as non-payable as per the autocapping, Rs.13 as dettol non-payable, Rs.2960/- as diet charges and registration fee non-payable, which was mentioned in the claim settlement voucher dated 21.06.2011. The complainant remained under medical follow up with the said Institute since 30.30.2011 and she needed advanced stereotactic neurosurgery-deep brain stimulation for reducing the severity of motor symptoms of Parkinson's disease and drug induced side effects. The complainant was covered under the medi-claim insurance by OPs since 2005 and present policy was a renewed policy. The complainant has filed complaint against OPs directing them to pay the unreasonable deduction of Rs.1,02,500/- with cost of litigation of Rs.5000/-.
3. Upon notice, OPs appeared and filed written reply by raising preliminary objections that complaint is false and frivolous to the knowledge of the complainant and merits dismissal on this score. The complex questions of facts and law are involved in this case, entailing recording voluminous evidence; which is impermissible in the summary proceedings by the Consumer Forum. The complainant has already accepted the amount of Rs. 3,75,000/- towards full and final settlement of the claim without any protest. The amount of Rs.3,75,000/- was passed by competent authority, after thorough consideration of the recommendation of TPA and other material was available on the file. The complaint is alleged to be an abuse process of law. On merits, the complaint was also contested by the OPs. It was submitted that claim of the complainant was rightly settled at Rs.3,75,000/- by the competent authority after thorough consideration of the recommendation of TPA and no other material was available on the record. It was further asserted by the OPs that deduction of Rs.1,02,500/- has rightly been made, as per recommendation of TPA and deducted amounts were not payable, as per the contract of insurance and has been rightly deducted by the OPs. The complainant is not entitled to any balance amount of Rs.1,02,500/-. OP prayed for dismissal of the complaint.
4. The complainant tendered in evidence, her affidavit Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-10. As against it; OP tendered in evidence affidavit of Ashwani Kukar Divisional Manager New India Assurance Co. Ltd Ex.R-1 along with copies of documents Ex.R-2 to Ex.R-5. On conclusion of evidence and arguments, the District Forum Ferozepur, accepted the complaint of the complainant by virtue of order of District Forum Ferozepur dated 28.05.2012. Dissatisfied with the order of the District Forum Ferozepur dated 28.05.2012, the OPs now appellants have preferred this appeal against the same.
5. We have heard learned counsel for the parties and have also gone through the record of the case.
6. The District Forum passed the direction to OPs to pay the amount of Rs.1,02,500/- to complainant. The main dispute between the parties pertains to the deduction of amounts made by the OPs out of the claimed amount of the complainant in this case. The complainant has assailed that the amount of Rs.2800/- has been wrongly deducted as donor room charges, Rs.360/- as neuropsycology evaluation charges not payable, Rs.660/- as HIV, HCV and HBSAG charges, Rs.240/- on account of purchase of grapes, Rs.2,14,370/- on account of autocapping, Rs.13/- of dettol and Rs.2960/- as diet charges along with other registration fee. The main dispute between the parties centered around the above-referred deductions. We are primary concerned with whether the OPs are justified in making the above deductions, as per contract of insurance between the parties or not. The terms and conditions of the contract of insurance are embodied in Ex.R-3 Mediclaim policy 2007. Clauses 2.0 to 2.6 thereof are significant and are laid down as under :-
2.0 Following reasonable, customary & necessary expenses are reimbursable under the policy.
2.1 Room, boarding and nursing expenses as provided by the Hospital/Nursing Home not exceeding 1.0% of the sum insured (excluding Cumulative Bonus) per day or actual amount, whichever is less.
2.2 Intensive Care Unit (ICU)/ Intensive Cardiac Care Unit (ICCU) expenses not exceeding 2.0% of the sum insured (excluding Cumulative Bonus) per day, or actual amount, whichever is less.
2.3 Surgeon, Anesthetist, Medical Practitioner, Consultants' Specialist fees.
2.4 Anesthesia, Blood, Oxygen, Operation Theatre Charges, Surgical Appliances, Medicines & Drugs, Dialysis, Chemotherapy, Radiotherapy, Artificial Limbs, Cost of Prosthetic devises Implanted during surgical procedure like Pacemaker, Relevant Laboratory/Diagnostic test, X-Ray and other medical expenses related to the treatment.
2.5 Pre-hospitalization medical charges up to 30 days period immediately before the insured's admission to hospital for that illness or injury.
2.6 Pos hospitalization medical charges up to 60 days period immediately after the insured's discharge from the hospital for that illness or injury.
Note :- The amounts payable under 2.3 and 2.4 shall be at the rate applicable to the entitled room category incase insured opts for a room with rent higher than the entitled category as under 2.1, the charges payable under 2.3 and 2.4 shall be limited to the charges applicable to the entitled category.
The above-referred charges are legally admissible and reimbursable under the policy. As per clause 2.1, room, boarding and nursing expenses as provided by the hospital/nursing home, not exceeding 1.0% of the sum insured (excluding cumulative bonus) per day or actual amount, whichever is less. The amount of Rs.2800/- towards donor room charges non-payable is covered under 2.1 of the medi-claim policy 2007 (Ex.R-3) and this deduction made by the OPs is not justifiable. The amount of Rs.660/- towards HIV, HCV and HBSAG charges and Rs.360/- towards as neuropsychology evaluation charges non-payable. Clause 2.3 of Ex.R-3 lays down that Surgeon, Anesthetist, Medical Practitioner, Consultants' Specialist fees are reimbursable. The OPs wrongly deducted the amount of Rs.360/- as neuropsychology evaluation charges and Rs.660/- has been deducted as HIV, HCV and HBSAG by the OPs. As per Clause 2.4 relevant laboratory/diagnostic test, X-ray and other medical expenses related to the treatment are admissible. Consequently, deduction of amount of Rs.660/- is not legally permissible and the amount of Rs.240/- has been deducted as grapes non-payable. The Clause 2.0 of the medi-claim policy Ex.R-3 does not make this amount admissible for reimbursable. The amount of Rs.13/- has been deducted as dettol non-payable, but it is part of cleanliness of the hospital and it is wrongly deducted. The amount of Rs. 2960/- as diet charges and registration fee, which is non-payable. Clause 2.0 of Ex.R-3 does not cover this amount. Consequently, we find the amount of Rs.2800/-, Rs.360/-, Rs.660/-, Rs.13/- have been wrongly deducted by OPs from the admissible amounts payable to the complainant. Now the point is with regard to deduction of amount in claim settlement voucher. The hospital services are Rs.3,73,045/-, out of which the amount of Rs.2,14,610/- has been deducted as per autocapping being not payable. Our attention has been drawn to the terms and conditions of the policy Ex.R-3 on the record. There is no definition of any autocapping therein. Clause 2.4 lays down that other medical expenses related to treatment are admissible for reimbursement. The hospital services in the bill are of Rs.3,73,045/- and counsel for OPs now appellants could not explain how they are justified in deducting the amount of Rs.2,14,610/- and approved amount of Rs. 1,58,435/- only. Consequently, this amount has been wrongly deducted by the OPs now appellants. Since the assured amount is Rs. 4,77,500/-, hence the complainant cannot get more amount than the assured amount of Rs.4,77,500/-. The District Forum, thus, rightly reached at the conclusion that the deduction of amount of Rs.2,14,370/- has not been explained by insured, as to why these expenses were not payable. There is nothing in Exclusion Clause to prove that autocapping expenses are not allowed. The order of the District Forum on this point is sustainable.
7. The counsel for OPs now appellants further argued that complainant has received the entire payment through cheque and claim stood finally settled. On this point; appellants referred to law laid down in Bhukker Electricals versus Oriental Insurance Company, reported in III (2012) CPJ 260 (NC). We find that in the cited case; the insured failed to show that it ever objected or protested against the settlement of the insurance claim. Similarly, reference was made to law laid down by our own State Commission in The Oriental Insurance Company Ltd.. versus Gurdev Singh, reported in 2012(1) CLT page 68-69. We find that in the cited authorities, the fact situation was different from the instant case. There is no evidence on the record that any discharge voucher was issued by the complainant, Suman Devi, in favour of OPs towards full and final settlement of the insurance claim. The claim settlement voucher Ex.C-3 is on the record, it is not signed by Suman Devi. The said claim settlement voucher is not executed by her towards full and final settlement of the claim in favour of OPs. On the basis of the fact situation, the authority cited before us are found distinguishable from the facts of the case.
8. The next point urged by Sh. B.S Taunque counsel for appellants is that insured has concealed the fact of pre-existing disease rendering the contract of insurance invalid. We find that this plea was not taken before District Forum by the OPs that complainant suffered from pre-existing disease and concealed the same material fact and it rendered the contract of insurance invalid. This contention was not raised before District Forum by the OPs now appellants. This contention cannot be raised for the first time in this appeal by the appellants and the same stands rejected
9. As a result of our above discussion, we have come to the conclusion that OPs have already paid Rs.3,75,000/- to complainant and the insured amount of treatment charges is Rs.4,77,500/- and hence insured complainant is entitled to remaining amount of Rs.1,02,500/- from OPs now appellants. The order of the District Forum Ferozepur dated 28.05.2012 cannot said to be unsustainable calling for any interference therein under challenge in this appeal. We affirm the order of the District Forum Ferozepur dated 28.05.2012,
10. In the light of the above discussion, we do not find any merit in this appeal and same is hereby dismissed.
11. The appellants have deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the complainant by way of crossed cheque/demand draft after the expiry of 45 days. Remaining amount shall be paid by the appellants to the complainant after 45 days from the date of receipt of copy of this order.
12. Arguments in this appeal were heard on 02.12.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.
13. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S.GURAM) MEMBER December 4, 2015 (ravi)