State Consumer Disputes Redressal Commission
Jagdish Chander vs The Oriental Insurance Company Ltd. & ... on 22 March, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR -37 A, CHANDIGARH
First Appeal No.436 of 2021
Date of Institution : 26.11.2021
Reserved on : 27.02.2023
Date of Decision : 22.03.2023
Jagdish Chander aged 77 years S/o late Shri Bhola Ram, resident of
house number 231, Bazar No.1, Rambagh Road, Ferozepur Cantt.
.....Appellant/Complainant
Versus
1. The Oriental Insurance Company Limited, 4501, 1st and 2nd
Floor, Bank Bazar, Bathinda-151001, through its Authorized
Signatory.
2. Raksha TPA Private Limited, SCO 122, 5th Floor, Feroze
Gandhi Market, Ludhiana, through its Authorized Signatory.
.....Respondents/Opposite Parties
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against
the order dated 12.07.2021 passed by the
District Consumer Disputes Redressal
Commission, Ferozepur.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Present:-
For the appellant : Sh. Abhishek Batta, Advocate For respondent No.1 : Sh. Sahil Abhi, Advocate For respondent No.2 : None 2 First Appeal No.436 of 2021
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The appellant/complainant-Jagdish Chander has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 (in short the 'Act') being aggrieved by the order dated 12.07.2021 passed by the District Consumer Disputes Redressal Commission, Ferozepur (hereinafter referred as the "District Commission") in C.C. No.603 of 2019, whereby the complaint filed by the appellant/complainant was dismissed
2. Briefly, the facts of the case as made out by the complainant in the complaint filed before the District Commission are that the complainant purchased PNB-Oriental Royal Mediclaim Policy from OP No.1-The Oriental Insurance Company Limited for himself and his wife after paying the premium of Rs.6705/- on 18.11.2011. Thereafter, policy No.233200/48/2012/2364 was issued. The complainant renewed his Mediclaim Policy from time to time after paying the requisite premiums and it was valid from 18.11.2018 to 17.11.2019. Thereafter, it was renewed further by paying an amount of Rs.19,587/-. The appellant/complainant went to Advance Centre of Eyes at Ludhiana to get his eyes checked as his vision was getting blurred. He was informed by the concerned Doctor that the complainant had to undergo surgery of his both eyes just to avoid 3 First Appeal No.436 of 2021 blindness. The complainant remained admitted in the said Hospital from 15.06.2018 to 16.06.2018, 22.06.2018 to 23.06.2018 and from 18.07.2018 to 19.07.2018. Further it was mentioned in the complaint that the complainant had spent an amount of Rs.45,000/- in total (Rs.15,000/- for each injection). The claim was submitted by the complainant to the OPs being the policy holder and also submitted all relevant documents including the bills but still his claim was repudiated on the ground that it was not payable as per Clause 2.5 of the terms and conditions of the policy. Thereafter, the complainant served a legal notice upon the OPs but nothing was done.
3. Stating to be a case of 'deficiency in service' and 'unfair trade practice' on the part of the OPs, the complainant was compelled to file the complaint before the District Commission.
4. On issuing notice in said complaint filed by the complainant, the OPs filed their separate written replies.
5. In written reply certain preliminary objections were raised by OP No.1 stating therein that the complaint was not maintainable as the complainant had not approached the District Commission with clean hands. It was also mentioned in the reply that claim of the complainant was not maintainable as the patient was admitted only for Intravitreal Injection Infusion which was not payable as per the terms and conditions of the policy and it was not falling under day care procedure list.
4First Appeal No.436 of 2021
6. In written reply the OP No.2 reiterated the same stand as made by OP No.1 in its written reply.
7. The complainant tendered into evidence certain documents and affidavit as Ex.C-1 to C-13 and thereafter evidence was closed. The OPs also tendered into evidence affidavits and documents OP-1/1 to Ex.OP-1/8 and Ex.OP-2/1 and closed the evidence. Thereafter by considering the contents of the complaint, replies thereof and evidence produced by the parties and also by hearing the arguments raised by the counsel representing the parties, the complaint was dismissed vide order dated 12.07.2021.
8. Said order dated 12.07.2021 passed by the District Commission whereby the complaint was dismissed has been challenged by the appellant/complainant before this Commission by raising a number of grounds.
9. There was a delay of 32 days in filing of the appeal. M.A. No.1323 of 2021 was filed for condonation of said delay and the same was condoned vide order dated 30.11.2021. Said M.A. No.1323 of 2021 was disposed of.
10. Mr. Abhishek Batta Advocate, learned counsel representing the appellant/complainant has submitted that the District Commission has not taken into consideration the actual and factual facts as well as the issues involved in the case and simply by referring the contentions of the OPs and without taking into consideration the correct facts and arguments raised on behalf of the 5 First Appeal No.436 of 2021 complainant has dismissed the complaint only on the ground that the complainant was admitted in the Hospital for Intravitreal Injection Infusion which did not require hospitalization as it was an OPD procedure and hospitalization for 24 hours was not required. Learned counsel has also submitted that the appellant/complainant remained admitted in the hospital for a period of more than 24 hours and Clause 2.5 was not applicable. Learned counsel further submitted that it was for the concerned Doctor to decide as to whether the surgery was to be conducted after admitting him for the period for which the concerned Doctor was thinking proper. The complainant was kept under observation while remained admitted under the advice of the concerned Doctor. Learned counsel has further submitted that the OP had not led any evidence to suggest that the appellant/complainant never remained admitted in the Hospital or there was no necessity or requirement to keep him during night time. Even no counter documentary evidence was led by the OPs that the appellant/complainant was not entitled for benefit of Clause 2.5 but still the claim was rejected. The complainant had remained admitted on three occasions for getting his eyes surgery done and remained hospitalized for a period of 24 hours which is evident from the bills and the discharge summary exhibited on the file of the District Commission as Ex.C-3 to C-5. However, the District Commission has failed to appreciate the documents Ex.C-3 to Ex.C-5 and the Insurance Policy Ex.C-1 to C-2 which is annexed as Annexure-3 with the appeal. However the OPs have not led any evidence by relying 6 First Appeal No.436 of 2021 upon any document issued by the Doctor of the Hospital or any other Authority showing that the appellant/complainant did not remain admitted in the hospital for the period as mentioned in Ex.C-3 to Ex.C-5 and his admission was not necessary for the Eyes Surgery. At the end learned counsel submits that nowhere it has been mentioned that for such Eyes Surgery the OPD procedure was required to be undertaken. Moreover, the Doctor was the best judge of his patient to suggest as to how the patient was required to be kept under observation after surgery or not and what was the requirement after surgery being satisfied with the condition of the patient. All these factors have not been taken into consideration by the District Commission.
11. Mr. Sahil Abhi Advocate, learned counsel representing respondent No.1/OP No.1-Insurance Company has opposed the submissions raised by learned counsel for the appellant/complainant. The patient was treated with Intravitreal Injection Infusion which did not require hospitalization as it was an OPD procedure and as such the claim was rightly repudiated in view of Provisions of Clause 2.5 of the terms and conditions of the policy. Learned counsel has also relied upon judgment of case titled as "National Insurance Company Limited and another Vs. Suresh Babu & another"
2007(1)CLT-356(NC) in support of his contentions. Mr. Sahil Abhi has also relied upon Mediclaim Literature in support of his arguments to explain as to how the Intravitreal Injections are given and what procedure is to be adopted. Learned counsel also submits that the 7 First Appeal No.436 of 2021 order passed by the District Commission is based on proper appreciation of evidence available on the record as produced by both the parties. The detailed speaking order has been passed by considering the arguments raised by both the parties and as such no interference is required.
12. None appeared on behalf of the respondent No.2/OP No.2 inspite of service.
13. Heard the arguments raised by learned counsel for the appellant/complainant as well as learned counsel for respondent No.1/OP No.1-Insurance Company. We have also carefully perused the impugned order passed by the District Commission and other documents available on the record including the terms and conditions of the policy.
14. Facts regarding taking of mediclaim policy by the appellant/complainant from OP No.1, treatment of eyes of the complainant, repudiation of claim by OP No.1, filing of complaint and reply thereof filed by OPs, dismissal of the complaint by the District Commission are not in dispute.
15. Clauses 2.2 and 2.3 of the policy relates to surgical operation, which are reproduced as under:-
"2.2 Surgical Operation : Surgery or Surgical Procedure means manual and / or operative procedure (s) required for treatment of an illness or injury, correction of deformities and defects, diagnosis and cure of diseases, relief of suffering or 8 First Appeal No.436 of 2021 prolongation of life performed in a hospital or day care centre by a medical practitioner.
2.3 Hospitalisation Period : Expenses on Hospitalisation are admissible only if hospitalization is for a minimum period of 24 (twenty four) hours."
In clause 2.2, it has been mentioned as to what procedure is required to be adopted for treatment of any illness or injury, correction of deformities and defects. Thereafter, clause 2.3 reflects hospitalization period wherein it has been mentioned that expenses of hospitalization are admissible only under the circumstances that patient remains admitted for a minimum period of 24 hours. However this time limit of 24 hours does not apply to some of the treatments as specified in the list under head Hospitalisation Period i.e. iv. Eye Surgery where the insured is discharged on the same day. Thereafter, under Clause 2.4 Day Care Centre has been defined and further under Clause 2.5 Day Care Treatment has been defined. In the present context Clause 2.5 i.e. Day Care Treatment is relevant which is reproduced as under:-
"2.5 Day Care Treatment : Day care treatment refers to medical treatment and/or surgical procedure which is:
i. Undertaken under General or Local Anaesthesia in a hospital/day care centre in less than 24 hrs because of technological advancement, and ii. Which would have otherwise required a hospitalization of more than 24 hours. Treatment normally taken on an out- patient basis is not included in the scope of this definition."
On perusal of said provision/Clause, it is apparent that Day Care Treatment is required for medical treatment where surgical procedure 9 First Appeal No.436 of 2021 is undertaken under general or local Anaesthesia in the Hospital/Day Care Centre for a period of less than 24 hours because of technological advancement. The claim has been rejected under said Clause by stating that it was a case of Day Care Treatment and the treatment which was undertaken by the complainant was of outdoor- patient and it was included in the scope of definition of Day Care Treatment. A plea has been taken that the complainant/patient was kept in the hospital for a period of 24 hours by keeping the patient under observation because of vision problem and the patient being the diabetic and also the fact that the patient was suffering from heart problem and hypertension. It has not been disputed from any document/evidence available on record that the complainant/patient had remained admitted in the hospital for a period of more than 24 hours.
16. However a plea has been taken by the Insurance Company that it was Day Care Treatment where admission was not required for 24 hours but nowhere it has been proved from any document including the admission card or the discharge summary or any evidence on record by OP No.1 that it was not a case of stay of 24 hours of the patient in the Hospital against the wishes of the Doctor. It is also pertinent to mention that complainant was old person 76 years of age at the time of treatment of both the eyes. Neither it has been mentioned in the admission and discharge summary nor any such opinion has been shown to this Commission that the patient remained admitted in the Hospital as per his sweet 10 First Appeal No.436 of 2021 will or contrary to the opinion of the Doctor. Learned counsel for the respondent No.1/OP no.1 has emphasized only on one line of Clause 2.5 "treatment normally taken on an out-patient basis is not included in the scope of this definition".
17. In the present case admittedly the patient remained admitted for more than 24 hours and as such there is no applicability of Clause 2.5 when it has been proved on record that the patient had remained admitted in the Hospital not contrary to any advice or wish of the Doctor/Hospital Authority. Accordingly the repudiation letter dated 08.10.2018 is contrary to said provision.
18. In view of the facts and the reasons as mentioned above, we find force in the arguments raised by learned counsel for the appellant and as such we are of the view that the order passed by the District Commission is not based on proper appreciation of evidence and the complaint has been dismissed without interpreting Clause 2.5 of the "words 24 hours". There is no opinion/advice of the Doctor/Medical Authorities that complainant remained admitted in the Hospital contrary to concerned Doctor's wishes. All these factors have not been taken into consideration while dismissing the complaint. Accordingly the order passed by the District Commission does not sustain and the same is hereby set aside. The appeal filed by the appellant/complainant is allowed with the following direction to respondent No.1/OP No.1:-
(i) to reimburse the amount i.e. Rs.45,000/- as spent by the appellant/complainant on his eyes treatment alongwith 11 First Appeal No.436 of 2021 interest @9% per annum from the date of repudiation of the claim till its actual realization; and
(ii) to pay composite amount of compensation of Rs.15,000/-
for causing mental agony and harassment and litigation expenses.
Respondent No.1/OP No.1 is directed to comply with the order within a period of 45 days from the date of receipt of certified copy of the order failing which OP No.1 will pay interest @12% per annum on the amount of Rs.45,000/- from the date of repudiation till its realization. The appeal qua OP No.2 is dismissed as respondent No.1/OP No.1 is the Insurance Company of the complainant. Resultantly the complaint is allowed against OP No.1 and dismissed qua OP No.2.
19. Since the main case is decided, the pending applications, if any, are also disposed of.
20. The appeal could not be decided within the stipulated period due to heavy pendency of Court cases and due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER March 22, 2023 (MM)