State Consumer Disputes Redressal Commission
Shri Jai Karmakar vs United India Insurance Co. Ltd. on 16 August, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/661/2015 (Arisen out of Order Dated 13/05/2015 in Case No. Complaint Case No. CC/386/2014 of District Kolkata-II(Central)) 1. Shri Jai Karmakar 1, Lindsay Street, now known as Nelly Sengupta Sarani, P.S. - New Market, Kolkata -700 087. ...........Appellant(s) Versus 1. United India Insurance Co. Ltd. Regd. office at 24, Whites Road, Chennai - 500 014. 2. Chairman, United India Insurance Co. Ltd. Regd. office at 24, Whites Road, Chennai - 500 014. 3. United India Insurance Co. Ltd. Divisional Office - VI, B-1, Gillander House, 8, Netaji Subhas Road, P.S. - Hare Street, Kolkata - 700 001. 4. Md. India Health Care Service Ltd. Md. India House, 147/8, Nr. Kothrud Petrol Pump Karve Status Circle, Kothrud, Pune - 411 038. 5. Md. India Health Care Service Ltd. 169, Lansdowne Road, 2nd Floor, Kolkata - 700 026. ...........Respondent(s) BEFORE: HON'BLE MR. JAGANNATH BAG PRESIDING MEMBER For the Appellant: Ms. Bipasha Mukherjee, Advocate For the Respondent: Mr. Sankar Mukhopadhyay., Advocate Dated : 16 Aug 2016 Final Order / Judgement JAGANNATH BAG, PRESIDING MEMBER
The present appeal is directed against the Order, dated 13.05.2015 , passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata , Unit -II, in CC No. 386 of 2014, whereby the complaint was allowed ( in part ) on contest against OP Nos. 1 to 3 with cost and dismissed against the OP No.4 without cost.
The Complainant's case, in brief, was as follows:
The Complainant obtained an individual Mediclaim policy from OP No 1 who issued the policy through OP No.3. The policy covered the risk of Rs. 3,00,000/- and it was valid for the period from 31.03.2010 to the midnight of 30.03.2011. The Complainant, having some problem in his eye contacted Dr. Zahir Abbas , MD. (AIIMS) , FRGS (UK) of Suryodaya Eye Centre of Calcutta Medical Research Institute, was advised for 3 dozes of intravitreal injection lucentis in his left eye . Dr. Abbas planned surgical procedure for administering the injection . Three dozes of such injection were administered . He was discharged on the same date on each occasion, i.e., 07.08.2010 , 16.09.2010 and 30.10.2010. Subsequently, he was referred to Dr. T.P. Das. for opinion . As per advice of the doctor he was admitted at CMRI , Kolkata on 18.12.2010 , 20.01.2011 and on 19.02.2011 when 3 more dozes of luecentis were administered in the left eye and he was discharged on the same date on each occasion. The Complainant submitted 6 claims for a total sum of Rs. 2,78,886/- to the O.P No. 4, i.e., the TPA of the Insurance Company. The claims were repudiated by the TPA on the ground that administering of intravitreal injection luecentis does not support the need of hospitalization. The Complainant requested the Divisional Manager of the OP Insurance Company, being OP No.3 for review but there was no response from them. The Complainant, having written to OP No.2 against repudiation of his claim, was told that the repudiation stood confirmed. Insurance Ombudsman was approached with opinion of renowned doctors certifying that the issue of administration of intravitreal injection in case of CNVM should be performed in operating room in absolute sterile conditions which is a surgical procedure and can not be regarded as OPD based treatment. The said Insurance Ombudsman awarded the claim in part only which was grossly insufficient . The award could not be accepted by the Complainant . The decision of the OPs repudiating the claim was highly irregular , arbitrary and illegal as the treatment by injection lucentis was never excluded from the policy issued by OP No.1. On the ground of gross deficiency in service , the complaint was filed before the Ld. Forum below .
The complaint was contested by the OPs denying allegation about deficiency in service or any unfair trade practice. It was contended that though the Insurance Ombudsman awarded the claim, in part , the Complainant never challenged the order in appeal in any court . Further, whether pushing of injection like lucentis is a surgical procedure or OPD procedure can not be determined in a summary trial and the Civil Court would be the appropriate Forum for proper adjudication of the complaint. The claim of the Complainant was duly repudiated by the TPA as per policy condition. As such, the complaint was liable to be dismissed.
Ld. Forum below having considered the materials on record and arguments advanced by Ld. Advocates of both the parties observed that there was no surgical operation in the case of the Complainant and the Complainant was not entitled to any hospitalization benefit. Ld. Forum below also observed that the policy sum insured with bonus stood at Rs. 2,22,500/- but the Complainant claimed Rs. 2,78,886/- and the total claim including cost etc. was Rs.6,78,886/-. Ld. Forum below also observed that there was no negligence , deficiency or illegal act on the part of the OPs as both the parties are governed by terms and conditions of the insurance policy. Still Ld. Forum below considering the case as a matter of 'social approach' allowed the complaint against OP Nos. 1 to 3 and directed such OPs to pay a sum of Rs. 1,41,000/- as finally settled amount together with cost of Rs. 2,000/-. The entire amount was ordered to be paid within one month from the date of order failing which penal interest @ Rs.200/- should be assessed till full satisfaction of the decree.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below, the Complainant-turned-Appellant has come up before this Commission with a prayer for direction to set aside the impugned order and to direct the OPs to pay sums as prayed for in the petition of compliant.
The memorandum of appeal has been filed together with copies of the impugned order, the petition of complaint, the W.V. filed by OP No.1 before the Ld. Forum below, the relevant policy and other documents including the repudiation letter issued by the TPA and the letter of confirmation issued by the OP Insurance Company in the matter of repudiation of the claims raised by the Appellant / Complainant etc. Ld. Advocate appearing for the parties have been heard .
Ld. Advocate appearing for the Appellant/Complainant submitted that the impugned order is illegal and arbitrary in nature as the material facts were not taken into consideration by the Ld. Forum below. It was wrongly held by the Ld. Forum below that the case of the Complainant was not an eye surgery and as per clause 2.2 and 2.3 Complainant is not entitled to any benefit. It was also wrongly held by the Ld. Forum below that the Complainant suppressed the fact of choraidal neo vascular membrance (CNVM) though the OP Insurance Company made no such averment in their W.V. filed before the Ld. Forum below. Several expert opinions were submitted before the Ld. Forum below confirming the fact that intravitreal injection is a surgical procedure and can not be regarded as an OPD based treatment . But, no counter opinion could be produced by the OP Insurance Company before the Ld. Forum below in support of their contention that the administrating of intravitreal injection lucentis 'does not support the need for hospitalization'. Such view taken by the TPA and endorsed by the Insurance Company is wholly wrong and deserves to be discarded . Again in the policy condition itself it has been stated vide clause 2.2. that in case of eye surgery among other ailments , the stipulation of stay in hospital for a minimum period of 24 hours will not be applicable. As such , the repudiation of the claims by the OP Insurance Company was unjust and unfair . The compliant should have been allowed by the Ld. Forum below in its entirety .
Ld. Advocate appearing for the Respondent Insurance Company submitted that the hospitalization of the Complainant for mere pushing of lucentis injection was not at all a surgical procedure. It was very much an OPD procedure for which hospitalization benefit is not covered by the policy terms. The Insurance Ombudsman awarded only an exgratia of Rs. 30,000/- which the Complainant / Appellant did not challenge in any appeal. They are ready to pay the said sum of Rs. 30,000/- to the Respondent /Complainant as exgratia payment . The process of pushing the lucentis injection is in no way a surgical procedure to be undertaken by hospitalization . The claim submitted by the Appellant / Complainant was beyond the policy terms which have been rightly observed by the Ld. Forum below. Again , Ld. Forum's order to pay a sum of Rs. 1,41,000/- on the ground of social approach is wholly misconceived as the matter is beyond the purview of the policy condition. The appeal deserves to be dismissed with direction to set aside the impugned order.
Decision with Reasons :
The point for consideration is whether the impugned order suffers from any material irregularity, legal infirmity or jurisdictional error.
There is no dispute that the Appellant/ Complainant took an individual Mediclaim policy for hospitalization benefit and the policy as renewed was valid between 31.03.10 and 30.03.11 .
During the subsistence of the policy the Appellant / Complainant under went eye treatment with pushing of intravitreal injections ( 6 dozes) in his left eye as advised by the treating doctor.
The TPA as well as the OP Insurance Company are found to have repudiated the claim on the ground that the hospitalization for LT eye , CNVM i.e., intravitreal injection lucentis does not support the need of hospitalization . It is important to note that such view of the OPs has not been supported with any expert opinion and there is no reflection of such expert opinion in the impugned order. On the other hand the Complainant/ Appellant has submitted several opinions, namely, from Shroff Eye Centre , LV Prasad Eye Institute , Dr. Lalit Verma of All India Ophthalmological Society , Dr. S. Natarajan , Chairman and Managing Director , Aditya Jyot Eye Hospital Pvt. Ltd. and Dr. Zahir Abbas , MD. (AIIMS), FRCS, ( UK) , consultant vitreo surgeon , CMRI , all certifying in more or less same tune that the intravitreal injection is surgical procedure which should be carried out under an aseptic condition and should be performed in the operating room. Such view appears to have been ignored by the Ld. Forum below who viewed that the disease was in existence prior to purchasing the policy though such averment was never made by the OPs/ Respondents herein . Ld. Forum below took an adverse view that the treatment was, in no way, a surgery though the attending doctor in every pre-operative advice mentioned that the planned surgical procedure would be of one day's duration which may be extended in case of unforeseen complication . Such advice implies that the treatment was of surgical nature which may be done in less than 24 hours or may take more time. In clause 2.2 of the policy schedule it has been clearly stated that the time limit of 24 hours is not applied in case of eye surgery among some other specified treatments .
It can be hardly disputed that a patient has little option against the advice of his or her attending doctor as to whether he or she should be hospitalized for treatment of his/her disease. In the present case , the Complainant was hospitalized and underwent treatment as advised by the attending doctor. In fact, there is no specific bar under the policy terms that administering of lucentus injection will not be permitted under hospitalization benefit. The plea of non-admissibility of extending of hospitalization benefit for administering injection lucentis was taken by the OP Insurance Company before the Insurance Ombudsman , stating that a circular had been issued about such non-admissibility but the Ld. Ombudsman observed that the internal circular was never communicated to the Respondent / Complainant. As such, the circular was not binding upon the insured.
Again, Ld. Forum's observation that the Complainant had his eye problem as a pre-existing disease has never been alleged by the OP Respondents. Hence, the observation of the Ld. Forum below in this regard does not appear to be correct. Award of Rs. 1,41,000/- only on the ground of 'social approach' seems to be beyond the scope of the policy itself. It would be rather prudent to hold that the Complainant / Appellant is entitled to the reimbursement of his claim within the cover of the policy terms . Accordingly, the Appellant / Complainant should be given the benefit of the policy .
In this connection it would not be out of place to refer to the decision of the Hon'ble National Consumer Disputes Redressal Commission as reported in 2008 CTJ 22 (CP) NCDRC holding that when two reasonable interpretations of the terms of the policy are possible , the interpretation which favours the insured is to be accepted and not the one that favours the insurer. In the present case, there is enough force in the opinion of the specialist eye surgeons as submitted by the Appellant / Complainant that the pushing of lucentus injection was a surgical procedure. In that view of the matter , the complaint should have been allowed as a matter of valid claim rather than an ex-gratia as held by the Insurance Ombudsman or as a consideration under social approach as decided by the Ld. Forum below.
The Appeal is found to have merit. Hence, Ordered That the appeal be and the same is allowed in part on contest . However considering the total sum insured vis-a-vis the claim of Rs. 2,78,886/- , the Respondent Nos. 1,2,& 3 are directed to release jointly and / or severally the sum assured of Rs. 1,50,000/- + Bonus of Rs. 37,500 /- and Rs.30,000/- = Rs. 2,17,500/- to the Appellant / Complainant with interest @ 8% p.a. from the date of submission of the claim before the Insurance Company till full realization. The Respondent Nos. 1 to 3 shall also pay the litigation cost of Rs. 2,000/- as awarded by the Ld. Forum below . The entire amount shall be paid within a period of 40 days from the date of this order , failing which the Appellant / Complainant shall be at liberty to get the order executed as per provisions of law. The impugned order stands modified. [HON'BLE MR. JAGANNATH BAG] PRESIDING MEMBER