State Consumer Disputes Redressal Commission
Dr Rikesh T Majmudar vs United India Ins Co Ltd on 30 June, 2023
Details DD MM YY
Date of Judgment 30 06 2023
Date of filing 09 10 2017
Duration 21 08 05
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Court No. 4
First Appeal No.690/17
Dr. Rikesh Thakorlal Majmundar
Age: 60 Years, Religion: Hindu,
Occupation: Orthopedic Surgeon,
Residing at: 17, Rajendra Society,
Near Dawat Restaurant, Manjalpur,
Vadodara. ...Appellant
Vs
1. United India Insurance Co Ltd.
Add.: Division -IV, Kirti Tower,
Tilak Road, Podium Floor,
In front of S.S.G Hospital,
Vadodara.
2. United India Insurance Co Ltd
Add.: Grievance Cell,
Suraj Plaza Building,
Sayajiganj, Vadodara
3. MD India Health care Service (TPA) Pvt. Ltd
Add.: Regional office, 302,
Lalita Towers, Near Rajpath Hotel,
Behind Railway Station,
Vadodara 390005
4. MD India Health care Service (TPA) Pvt. Ltd
Add.: Head office, S. No 46/1, E-Space,
A2 Building, 3rd Floor, Pune Nagar Road,
Vadgaonsheri, Pune 411014(Maharashtra) ...Respondents
APPEARANCE: Mr. V. M. Pancholi, Ld. Adv. for the appellant
Mr. P. H. Thakkar, Ld. Adv. for the respondents.
Akshay A/690/17 Page |1
CORAM: Hon'ble Mr. R. N. Mehta, Presiding Member
Hon'ble Ms. P. R. Shah, Member Order by Hon'ble Ms. P. R. Shah, Member.
1. The present appeal is filed by the appellant being aggrieved by and dissatisfied with the order passed by the Ld. District Consumer Disputes Redressal Commission of Vadodara dated 16.08.2017 in complaint no.426/2016.
2. When the matter was called out, Ld. Adv. V. M. Pancholi for the appellant and Ld. Adv. P. H. Thakkar for the respondent were present.
Impugned judgment
3. Ld. District Commission has partly allowed the complaint and directed the opponent insurance company to pay the complainant Rs.20,000/- at 8% interest from the date of complaint and Rs.1,000/- for mental agony and Rs.2,000/- for litigation cost. Facts of the case
4. The complainant is a senior orthopaedic surgeon and running Aashiravad Hospital at Vadodara. Complainant had a mediclaim policy of sum insured Rs.5,00,000/- from the opponent no.1 United India Insurance Co. Ltd. for the period 09.10.2015 to 08.10.2016. The complainant underwent a cataract surgery in his right eye on 20.02.2016, and in the left eye on 04.03.2016.The expenses incurred per eye were Rs.70,000/- and total for both eyes was Rs.1,40,000/-. The complainant submitted the claim to the opponent but opponent only allowed the claim of Rs.29,000/- per eye and totally Rs.58,000/- was paid. The complainant states that opponents deducted Rs.41,000/- per eye and total of Rs.82,000/- without any valid reason from the claim amount. Therefore, the complainant filed the complaint before the Ld. District Commission.
Akshay A/690/17 Page |2 Arguments of the Appellant/original Complainant
5. It is averred by the Ld. Adv. for the appellant/original complainant that the order of the Ld. District Commission is illegal, arbitrary and unjust and hence is required to be modified. The Ld. District Commission has not considered the evidence on record. The appellant submits that he has incurred the expense of Rs.1,40,000/- for the cataract operation for both the eyes. However, the respondent has rejected the claim on the ground that the surgery is for correction of vision for cosmetic purpose. Appellant has produced the certificate issued by treating Doctor as well as medical literature before the Ld. District Commission to prove the fact that the appellant underwent cataract surgery and it was not a cosmetic surgery. The appellant further avers that the Ld. District Commission has not appreciated the above documents and without giving any findings allowed only Rs.20,000/- against the total amount of Rs.82,000/- deducted by the respondent. The appellant has prayed that the order of the Ld. District Commission is required to be modified.
Arguments of the Respondent/Original opponent
6. The Ld. Adv. for the respondent referred to the written statement on page 61 and stated that as per the TPA scrutiny and the available documents, the appellant was entitled to Rs.29,000 for each claim and hence totally Rs.58,000/- was paid as per policy terms and conditions no. 3.22, 3.33, 4.6 and 4.7. It is contended by the respondent that the appellant has been given multi focal lens which is a cosmetic benefit to eliminate the need of spectacles. As per policy terms and conditions cost of spectacles, surgery for correction of vision and treatment for cosmetic purpose is not payable, hence amount of Rs.51,000/-for each lens is not payable fully and the MRP of Unifocal Lens which is a medical necessity for which Rs.10,000/- is being paid. The respondent has rightly Akshay A/690/17 Page |3 deducted the amount of Rs.41,000/- for each lens with a total deduction of Rs.82,000/- as per the terms and conditions of the policy. The respondent has prayed that the order of the Ld. District Commission is just, fair and reasonable and the appeal should be dismissed.
Merits of the case
7. The undisputed facts of the case are that the appellant had the opponents medical policy and during the period of the policy, the appellant underwent the cataract surgery of his right eye on 20.02.2016 and left eye on 04.03.2016 and incurred the expenditure of Rs.70,000 for each eye and thereby claimed Rs.1,40,000/- for medical reimbursement. The opponents allowed the amount of Rs.29,000/- for each eye and paid Rs.58,000/- against the total claim of Rs.1,40,000/- with a deduction of Rs.82,000/- from the total claim submitted by the appellant.
8. The claim payment statement of the TPA (MD India) of the opponent is at page 47 and page 48 which reads as below:
Page 47 DEDUCTION DETAILS
0. BILL DATE REQUESTED AMT DED. AMT REMARKS 798-3 20/02/2016 51000 41000 As per remark Balance Sum Insured Before Claim Rs.500000 Lodged Amt. Rs.70000 Deduction Amt Rs.41000 Discount Amt. Rs.0 Authorized Amt Rs.0 Settled Amt Rs.29000 Net Payable Rs.29000 Balance Sum Insured After Claim Rs.471000 Remarks:
Patient has been given Multifocal lens of ( , ABBOT ZR00) costing Rs.51000/- Which primarily has a cosmetic benefit to eliminate the need of spectacles. As per policy terms and conditions, cost of spectacles, surgery for correction of vision and treatment for cosmetic purposes is not payable. Hence, amount of Rs. 51000/- is not payable fully. The MRP of unifocal lens which is a medical necessity 10000/- is being paid.
Page 48 DEDUCTION DETAILS
0. BILL DATE REQUESTED AMT DED. AMT REMARKS Akshay A/690/17 Page |4 38/3 04/03/2016 51000 41000 As per remark Balance Sum Insured Before Claim Rs. 471000 Lodged Amt Rs.70000 Deduction Amt Rs.41000 Discount Amt. Rs.0 Authorized Amt Rs.0 Settled Amt Rs.29000 Net Payable Rs.29000 Balance Sum Insured After Claim Rs.442000 Remarks:
Patient has been given Multifocal lens of ( , ABBOT ZR00) costing Rs.51000/- Which primarily has a cosmetic benefit to eliminate the need of spectacles. As per policy terms and conditions, cost of spectacles, surgery for correction of vision and treatment for cosmetic purposes is not payable. Hence, amount of Rs. 51000/- is not payable fully. The MRP of unifocal lens which is a medical necessity 10000/- is being paid.
9. The appellant has produced the bills of expenses incurred at page35 and 42, the tax invoice of the IOL implant at page 33 and 41, and the payment receipts are shown at page 38 and 41 which establishes that the insured has paid a total amount of Rs.1,40,000/- for the cataract surgery for both the eyes.
10. On comparing the claim payment statement of the opponent and bill paid by the complainant, it is clear that the deduction made by the opponent is on the amount of the IOL lens. The insured has claimed Rs.51,000/- as paid by the insured as against that, the respondent has held that the appellant has been given a multi focal lens, which primarily has a cosmetic benefit to eliminate the need of spectacles. The appellant has countered this statement by directing to page 39 and 40 wherein, the treating Doctor has stated that the insured was operated for cataract surgery with foldable multifocal IOL implant by phacoemulsification. The appellant has further countered this contention and stated that the cataract lens surgery is not done for cosmetic benefit as stated by the respondent, but multifocal lens implant has been done to improve the vision as well as astigmatism. Because persistent astigmatism after cataract surgery may cause headache, watering of eyes and blurring of eyes. The appellant has supported this contention with medical literature at page 69 to 73. The Akshay A/690/17 Page |5 respondent has not brought any evidence on record to counter this nor prove that the alleged surgery was a cosmetic surgery. It is to be noted that cosmetic surgery and use of cosmetic lens in surgery are two different things. The treatment was not for cosmetic purpose. Implants used may be cosmetic but it has nothing to do with the face of the insured. Selection of type of implants cannot be decided by insurer. The respondent has further stated in the claim payment statement, that MRP of the unifocal lens which "is a medical necessity Rs.10,000/- is being paid." This implies that the respondent has decided what type of the lens is a medical necessity, completely overlooking the treating Doctor's decision of implanting the multifocal lens.
11. From the above statement, it is clear that the respondent has gone beyond the role of the insurer by concluding that the alleged surgery was a cosmetic surgery and not a cataract surgery and that the medical necessity was a unifocal lens of Rs.10,000/- and allowed only Rs.10,000/- from the claim amount of Rs.51,000/- for the lens per eye. It also to be noted that the policy does not exclude cataract surgery. It also does not mention limit of charges or type of lens.
12. The Respondent has misdirected itself while concluding that the cataract surgery was a cosmetic surgery and arbitrarily encroached upon right of insured to select implant to be used for insured's body.
Policy conditions 3.22, 3.33, 4.6(b), 4.7
13. The opponent has stated that as per the above policy conditions, the insured is entitled to only Rs.29,000/- per claim and totally Rs.58,000/-
Clause 3.22: Medical Expenses:
Medical expenses means those expenses that an insured person has necessarily and actually incurred for medical treatment on account Akshay A/690/17 Page |6 of illness or accident on the advice of a Medical Practitioner, as long as these are no more than would have been incurred and no more than other hospitals or doctors in the same locality would have charged for the same medical treatment.
Appellant had actually incurred all the expenses as stated in the Complaint and for the same, all the documents were submitted. The respondent has not denied that the appellant has actually incurred the expenditure of Rs 1,40,000 for cataract surgery for both the eyes. Furthermore, the complainant has undergone the surgery on advice of a well-known Medical Practitioner. We are unable to hold that while choosing particular implant by the insured it has any way affected the rights of the insurer or violated any terms of contract.
Clause 3.33: Reasonable & Customary Charges:
Reasonable and customary charges means the charges for service or supplies which are the standard charges for the specific provider and consistent with the prevailing changes in the geographical area for identical or similar services, taking into account the nature of illness/injury involved.
Appellant states that the expenses incurred were standard charges for the surgery. None of the terms and conditions of the policy restricts the right of the insured to have option to select type of implant. The nature of surgery is cataract but insurer has problem with type of implant selected which cannot be restricted under the above referred clause. Therefore, the deduction of the amount under this clause by the respondent is not sustained.
14. We refer to the following citation:
Appeal No. 1378/2014, in the matter between Narendra D. Jobanputra Vs. The Oriental Insurance Co. Ltd. Para 11 of the judgment reads as under:
"As per policy condition 13.2, insured would be entitled to reasonable, customary and necessary expenses. We fail to understand the meaning of reasonable charges. What does the insurance company mean by reasonable, customary and necessary Akshay A/690/17 Page |7 expenses is also not clear. Hospitalization expenses and charges vary from person to person. As per the policy condition no amount or slab is fixed for cataract operation by the insurance company. It is the insurance company who will decide in each case of cataract operation what amount of claim to be settled for insured. We fail to understand the definition or criteria of reasonable charges and customary charges. The insurance company has not been able to explain us this term. The dictionary meaning of-
(a) necessary is needed, required, such as must be not to be avoided:
(b) customary is agreeing with, or established by, custom, established by common usage and
(c) reasonable is just, fair, agreeable to reason; not excessive or immoderate within due limits.
Considering this dictionary meaning also, we fail to understand the possibilities or guidelines adopted by the insurance company to decide the claim on necessary, customary or reasonably charges. Insured is covered under the policy for 1,50,000/-. The complainant's claim is 1,06,054/- which is covered under the policy. The claim is for indemnification and not for acquiring any benefit. Opponents could not explain or satisfy us on which head the claim was decreased and settled for 160,000/- instead of the claim amount of 1,06,054/-. If insured is covered under the policy, the insurance company is duty bound to pay. The action of the insurance company is nothing but unfair trade practice thereby putting the insured into trouble and compelling to resort to litigation. It is now high time for the insurancecompany and also IRDA to fix the amount in cataract operation considering the sum insured by the insurer in its medical policy. There cannot be lumpsum amount for any operation. It should be on insured amount and premium charges paid by the insured. It cannot be same fixed amount for the medical policy for Rs. 1,00,000/- and that too for Rs. 5,00,000/- The case of the appellant/original complainant is squarely covered by the observation made in the judgment...
Clause 4.6 -(b) : Vaccination or inoculation or change of life or cosmetic or aesthesis treatment of any description such as corrections of eyesight etc. The respondent states that the surgery of the appellant is a cosmetic surgery. The respondent has failed to prove that the cataract surgery was a cosmetic surgery with any cogent evidence and therefore, there is no breach of this condition.
Akshay A/690/17 Page |8 Clause 4.7 : Cost of spectacles, contact lenses and hearing aids. This refers to external aids on the body whereas Multifocal lens is implanted inside the eye. It has nothing to do with external look of the body. The respondent has failed to show any expenses incurred by the appellant towards any of the above items and therefore, there is no breach of this clause of the policy.
15. The stand taken by the respondent raises many questions. Is it the role of the respondent insurance company to decide which lens is required by the patient? Is it the role of the insurance company to decide and conclude that unifocal lens was a medical necessity? Has the insurer not trespassed into the domain expertise of the treating Doctor? Is it not the discretion of the treating Doctor to decide the best possible treatment for the patient? The insurer has no right to interfere in the treatment method and use of implants plan of the Doctor. Insurer can only if the terms and conditions of the policy allow, interfere when the insured has used his discretion in deciding any expenses incurred. Here in the instant case, it is clear that the insured has decided on the implant in consultation with the treating doctor as the policy terms and conditions do not have any restrictions on the amount or the type of lens for cataract surgery.
16. From the facts and the circumstances of the case, this Commission has taken a serious view that the respondent has deducted as a routine and mechanical manner amount from the genuine claim of the insured, on items where insured had a right to choice. That the opponent insurance company decided on what is reasonable and customary completely overruling/disregarding the treating doctors discretion for the patient's treatment plan. The opponent has indirectly played the role of a Doctor which is serious and cannot be acceptable and should be curbed. Also by denying to the Akshay A/690/17 Page |9 appellant the actual expenses incurred, despite there being no breach of policy conditions and forcing the appellant to knock at the doors of the court for justice is in our view a colossal waste of time and resources of all parties concerned Commission has no power to grant interest
17. Ld. Adv. for the respondent vehemently argued that the Consumer Commission under the Consumer Protection Act, 2019 has no power to award interest. Also it was submitted that the interest granted by the Ld. District Commission is high and needs to be reduced.
18. This issue of interest was also raised by and was dealt with by the State Commission in Appeal no.276/2023 The Oriental Insurance Co. Ltd. V/s Jigar Hasmukh Soni decided on 08.05.2023. The relevant portion from the appeal is reproduced as below:
"Consumer Commissions have no power to award interest.
To deal with this, issue we need to examine Section 39(d) of the Consumer Protection Act, 2019 which reads as follows:
39. Findings of District Commission.- (1) Where the District Commission is satisfied that the goods complained against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services or any unfair trade practices, or claims for compensation under product liability are proved, it shall issue an order to the opposite party directing him to do one or more of the following, namely:-
(c) to return to the complainant the price, or, as the case may be, the charges paid-by the complainant along with such intereston such price or charges as may be decided;
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party:
Provided that the District Commission shall have the power to grant punitive damages in such circumstances as it deems fit;"
Akshay A/690/17 P a g e | 10 11.1 Further we refer to the judgment SC Ghaziabad Development Authority vs Balbir Singh on 17 March, 2004,Appeal (civil) 7173 of 2002. This judgment is given under Old Consumer Protection Act, 1986.
" 37. Black's Law Dictionary (7th Edn.) defines "interest" inter alia as the compensation fixed by agreement or allowed by law for the use or detention of money, or for the loss of money by one who is entitled to its use; especially, the amount owed to a lender in return for the use of the borrowed money. According to Stroud's Judicial Dictionary of Words And Phrases (5th Edn.) interest means, inter alia, compensation paid by the borrower to the lender for deprivation of the use of his money. In Secy., Irrigation Deptt., Govt. Of Orissa v.
G.C. Roy [(1992) 1 SCC 508] the Constitution Bench opined that a person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages.... this is the principles of section 34 of the Civil Procedure Code. In Sham Lal Narula (Dr) v. CIT [AIR 1964 SC 1878:(1964) 7 SCR 668] this Court held that interest is paid for the deprivation of the use of the money. The essence of interest in the opinion if Lord Wright, in Riches v. Westminster Bank Ltd. [(1947) 1 All ER 469: 1947 AC 390(HL)] All ER at p. 472 is that it is a payment which becomes due because the creditor has not had his money at the due date. It may be regarded either as representing the profit he might have made if he had had the use of the money, or, conversely, the loss he suffered because he had not that use. The general idea is that he is entitled to compensation for the deprivation; the money due to the creditor was not paid, or, in other words, was withheld from him by the debtor after the time when payment should have been made, in breach of his legal rights, and interest was a compensation whether the compensation was liquidated under an agreement or statute. A Dvision Bench of the High Court of Punjab speaking through Tek Chand, J. In CIT v. Dr. Sham Lal Narula [AIR 1963 Punj 411:(1963) 50 ITR 513] thus articulated the concept of interest: (AIR p. 414, para
8) "8. The words 'interest' and 'compensation' are sometimes used interchangeably and on other occasions they have distinct connotation. 'Interest' in general terms is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another. In its narrow sense, 'interest' is understood to mean the amount which one has contracted to pay for use of borrowed money. ... In whatever category 'interest' in a particular case may be put, it is a consideration paid either for the use of money or for forbearance in demanding it, after it has fallen due, and thus, it is a charge for the use or forbearance of money. In this sense, it is a compensation allowed by law or fixed by parties, or Akshay A/690/17 P a g e | 11 permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money after it has become payable."
11.2 Interest under Consumer Protection Act- Although the Consumer Protection Act does not contain any provision for grant of interest, but on account of a catena of cases of the Supreme Court that interest awarded taking course to Section 34 CPC, to do complete justice between the parties. That principle is based upon the justice, equity and good conscience, which would certainly authorise the court to grant interest, otherwise, the very purpose of awarding compensation to the appellant/original complainant would be defeated Accordingly, it was held that the respondent was liable to pay the amount awarded by the State Commission the appellant/original complainant together with interest at the rate of 9% per annum, from the date of filing of the complaint is till it is actually paid, Rubi(Chandra) Dutta V. United India Insurance Co. Ltd. (2011) 11 SCC 269: (2011) 3 SSC (Civ) 658; Manalal Prabhudayal v. Oriental Insurance Co. Ltd., (2009) 17 SSC 296:
(2011) 2 SSC (Civ) 376.
12. As is evident, the Consumer Commissions have been given the powers to award compensation to the Consumer for any loss, injury suffered by the consumer due to the negligence of the opponent party. It can be thus be extrapolated that if the Commission concludes that a genuine claim of the Consumer is repudiated and the consumer suffered loss, than the interest awarded by the Commission is by way of compensation. Therefore the Commission has the power to award interest.
13. From the above deliberations, it is undisputed that the Consumer Commissions do have the right to award interest by way of compensation to the consumer for loss or injury suffered. In the instant case there is deficiency in service on the part of the insurance company for repudiating the genuine claim of the complainant without any cogent evidence or reasons, because of which the consumer has suffered loss."
19. This commission is unable to understand the reason as to why the issue of consumer commission's power to award interest under the consumer protection Act 2019 is repeatedly raised by the Ld. Adv. for the respondent, when, the same issue of interest was raised by the Ld. Adv. and dealt with in the Appeal No.276/2023.We hope that for the Ld. Adv. for the respondent, the Akshay A/690/17 P a g e | 12 issue on the power of consumer commission's to award interest is now settled. We have noted the request made by the Ld. Adv. for reducing the interest rate, but do not concur that the interest awarded by the Ld. District Commission is on the higher side.
20. We have considered grounds stated in the appeal memo, the impugned judgement and order, documentary evidence produced on record, arguments advanced by Ld. Adv. for both the parties, ratio laid down in the above referred citations and facts and circumstances of the case.
21. From the foregoing discussions and observations, we are of the view that the appellant has been able to substantiate the contention that there is deficiency in service by the opponent by deducting the amount of Rs.29,000/- for the IOL implant for each eye and total deduction of Rs.82,000/- from the claim of Rs.1,40,000/- of the appellant. The appellant has established that the cataract surgery was not a cosmetic surgery. The respondent has failed to prove breach of policy, clause 3.22, 3.33, 4.6 and 4.7 to justify its deduction. Further, the respondent has not denied that the appellant has actually incurred expenditure of Rs 1,40,000/ for the cataract surgery. The insured has a policy with sum assured of Rs 500,000/and has made a claim of Rs 1,40,000/. The appellant is entitled to the full claim of Rs.1,40,000/- and the respondent is liable to pay the deducted amount of Rs.82,000/- to the appellant.
22. We are of the view that the Ld. District Commission has erred in awarding only part amount of the claim. The Ld. District Commission has not appreciated documents on record in the right perspective and has not given any reason to justify the award of Rs.20,000/- against the total claim of Rs.82,000/- of the appellant. The order of the Ld. District Commission is modified with respect Akshay A/690/17 P a g e | 13 to the award amount and the rest of the order of the Ld. District Commission is confirmed. In the interest of justice, following order is passed.
ORDER
1. The appeal no. 690/17 is partly allowed.
2. The order of the Ld. District Commission, Vadodara dated 16.08.2017 in complaint no. 426/2016 is modified as under:
a. The opponent insurance company is directed to pay Rs.82,000/- from the date of the complaint with 8% interest to the appellant/original complainant.
3. The rest of the order of the Ld. District Commission, Vadodara dated 16.08.2017 in complaint no. 426/2016 is confirmed.
4. No order as to cost.
5. Registry is directed to send certified copy of this judgment to the parties free of cost.
6. Registry is further directed to send copy of this judgment to the District Commission, Vadodara through E-mail in PDF format for taking necessary action.
Pronounced in open court today on 30.06.2023.
P. R. Shah R. N. Mehta Member Presiding Member Akshay A/690/17 P a g e | 14