State Consumer Disputes Redressal Commission
Hero Dayanand Medical College vs Ashok Kumar on 5 May, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Date of Decision: 5.5.2016
First Appeal No. 826 of 2015
Date of institution: 24.7.2015
Hero Dayanand Medical College Heart Institute, A Unit of Dayanand
Medical College & Hospital, Ludhiana through its Authorized Signatory.
Appellant/Op No. 4
Versus
1. Ashok Kumar son of Shri Kishore Chand, resident of Village
Bahmani Wala, Tehsil and District Fazilka.
Respondent No.1/Complainant
2. MD India Healthcare Services TPA (Third Party Administrator under
Bhai Ghanaya Sehat Sewa Scheme), Maxpro Park-D/38, Industrial
Area, Phase I, Mohali, Punjab 160 065 through its Authorized
Signatory.
3. United India Insurance Company Limited, through its Branch Office,
Ferozepur through its Authorized Signatory.
4. The Bahmani Wala MPCASS Limited, Bahmani Wala, Tehsil and
District Fazilka, through its Authorized Signatory.
Respondent Nos. 2 to 4/Op Nos. 2 to 4
First Appeal against the order dated 16.6.2015
passed by the District Consumer Disputes
Redressal Forum, Ferozepur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
First Appeal No. 826 of 2015 2
Present:-
For the appellant : Sh. K.S. Cheema, Advocate
For respondent No1. : Sh. Binderjit Singh, Advocate
For respondent Nos.2&3 : Sh. Nitin Gupta, Advocate
For respondent No. 4 : Sh. Kamal Grover, Advocate
2nd Appeal
First Appeal No. 866 of 2015
Date of institution: 4.8.2015
United India Insurance Company Limited, through its Branch Office,
Ferozepur through its Authorized Signatory.
Now Represented through the Duly Authorised Signatory of Regional
Office 136, Feroze Gandhi Market, Ludhiana, Punjab
Appellant/Op No. 2
Versus
1. Ashok Kumar son of Shri Kishore Chand, resident of Village
Bahmani Wala, Tehsil and District Fazilka.
Respondent No.1/Complainant
2. MD India Healthcare Services TPA (Third Party Administrator under
Bhai Ghanaya Sehat Sewa Scheme), Maxpro Park-D/38, Industrial
Area, Phase I, Mohali, Punjab 160 065 through its Authorized
Signatory.
3. The Bahmani Wala MPCASS Limited, Bahmani Wala, Tehsil and
District Fazilka, through its Authorized Signatory.
4. Hero Dayanand Medical College Heart Institute, A Unit of Dayanand
Medical College & Hospital, Ludhiana through its Authorized
Signatory.
Respondent Nos. 2 to 4/Op Nos. 1, 3 & 4
First Appeal against the order dated 16.6.2015
passed by the District Consumer Disputes
Redressal Forum, Ferozepur.
First Appeal No. 826 of 2015 3
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Nitin Gupta, Advocate
For respondent No1. : Sh. Binderjit Singh, Advocate
For respondent No.2 : Ex.-parte
For respondent No. 3 : Sh. Kamal Grover, Advocate
For respondent no. 4 : Sh. K.S. Cheema, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
This order will dispose of both the above mentioned two appeals as both the appeals are arising out of the impugned order dated 16.6.2015 passed in Consumer Complaint No. 445 dated 18.11.2014 by the District Consumer Disputes Redressal Forum, Ferozepur(in short the "District Forum") vide which the complaint filed by complainant was accepted and Op Nos. 1 & 2 were directed to pay a sum of Rs. 66,000/- to the complainant on account of his treatment of pacemaker battery replacement and Op No. 1 was directed to refund a sum of Rs. 1,06,701/-, which was charged in excess from the complainant alongwith interest @ 9% per annum from the date of bill i.e. 25.6.2014 till realization. Op Nos. 1 & 2 were further directed to pay a sum of Rs. 3,000/- and Op No. 4 was also directed to pay a sum of Rs. 3,000/- as litigation expenses to the complainant. Order was directed to be complied with within a period of 30 days. Appeal No. 826 of 2015 has been filed by Op No. 4 whereas Appeal No. 866 of 2015 has been filed by Op No. 2. First Appeal No. 826 of 2015 4
2. Complainant filed complaint against Ops under the Consumer Protection Act, 1986 (in short 'the Act') on the averments that being Member of the Cooperative Society, as per the scheme of the Government of Punjab, Cooperative Department under Bhai Ghanhiya Trust covered the complainant under the insurance policy issued by Op No. 3. Op No. 3 accordingly had issued identity card No. MD15-BGSSS-00314162-SP. Complainant was suffering from some disease and he approached the office of Hero Dayanand Medical College and Heart Institute, Ludhiana, who advised for heart surgery. Complainant asked hospital for cashless hospitalization and accordingly, the claim of the complainant was filed before Op Nos. 1 & 2. However, they denied the cashless hospitalization. However, complainant was admitted in the hospital on 18.6.2014 and was discharged on 25.6.2014. During this period, Op No. 4 charged a sum of Rs. 1,72,701/- for his treatment. The amount was paid by the complainant from his own pocket. Op Nos. 1 & 2 without any sufficient cause and reason, had denied the claim of the complainant, which amounted to deficiency in service and unfair trade practice on the part of Ops. Accordingly, the complaint was filed with the direction to Ops to sanction the genuine claim of the complainant, pay Rs. 20,000/- as compensation and Rs. 5,500/- as litigation expenses.
3. Complaint was contested by Ops No. 2 to 4 whereas Op No. 1 was ex-parte before the District Forum. Op No. 2 in its written reply/version took the preliminary objections that as per the discharge summary of Op No. 4, complainant remained admitted there from 18.6.2014 to 25.6.2014 and was diagnosed as a case of First Appeal No. 826 of 2015 5 hypertension, normal coronaries (2003), Sick Sinus Syndrome-post PPI(2003, Medtronic Double Chamber), end of battery life, PPI stands for permanent pacemaker implantation done on 21.6.2014, therefore, the complainant had undergone battery replacement and Op No. 4 in its pre-authorization sent to Op No. 1 had demanded Rs. 66,000/-. However, the claim was rightly repudiated by this Op as battery replacement of pacemaker was not covered under the scheme. According to pre-authorisation, Op No. 4 was ready to replace the pacemaker of the complainant for a sum of Rs. 66,000/- which were actual expenses of Op No. 4 whereas Op No. 4 had excessively charged a sum of Rs. 1,72,701/- from the complainant; complaint was bad for not pleading cause of action and that maximum insurance cover in respect of Cardiac Surgery was only Rs. 1.50 lacs. On merits, it was again reiterated that the claim of the complainant was rightly repudiated, therefore, there was no deficiency in service on the part of this Op. Complaint was without merit, therefore, it be dismissed.
4. Op No. 3 in its written reply/version took the preliminary objections that complaint was false, frivolous and vexatious, therefore, it was liable to be dismissed; complainant had not come to the Forum with clean hands and he had suppressed the material facts and that complicated questions of facts and law were involved, which required lengthy procedure of examination and cross- examination, which was not possible under this Act in a summary procedure, therefore, the matter was required to be referred to the Civil Court. The scheme under BGSSS launched by the Government First Appeal No. 826 of 2015 6 of Punjab was admitted and that insurance cover was given by Op No. 2 and the complainant was covered under that scheme on the basis of insurance cover issued by Op No. 2. This Op was having no knowledge that complainant suffered from any disease and was admitted with Op no. 4 and spent a sum of Rs. 1,72,701/- on his treatment. In case it was so, the payment was to be paid by the insurance company, therefore, there was no deficiency in service or any unfair trade practice on the part of this Op. Complaint against this Op was without any merit, therefore, it be dismissed.
5. Op No. 4 in its written reply/version took the preliminary objections that the District Forum, Ferozepur did not have any territorial jurisdiction to entertain this complaint; this Op had no concern with the insurance of the complainant or the payment of the cost of the treatment to the complainant under any insurance policy but the complainant has dragged this Op in frivolous litigation and that the complainant had not approached the Forum with clean hands and was guilty of suppression of material fact. Pre-approval for cashless facility of the complainant was forwarded to Op Nos. 1 & 2 and they denied it and after that the payment was made by the complainant. On merits, it was stated that complainant was admitted with Op No. 4 on 23.7.2003 bearing Admn. No. 7713 under Dr. G.S. Wander, Chief Cardiologist and after proper investigations, patient was diagnosed as under:-
Supraventricular Tachycardia.
Acute LVF (Recovered).
Tachy Brady Syndrome (sick sinus syndrome) First Appeal No. 826 of 2015 7 Patient was admitted with acute coronary syndrome with acute LVF with PSVT. PSVT reverted with carotid massage and patient was managed with doubtamine, diuretics, antibiotic. After stabilization, patient was taken for coronary angiography. Permanent pacemaker implantation was done on 1.8.2003 and patient was discharged in a stable condition. Patient again approached Op No. 4 on 7.6.2014 and after investigation doctor advised him for battery replacement. He showed his insurance identity card and corporate cell had forwarded the request of the complainant for cashless treatment but it was declined. It was intimated to the complainant that if he wanted treatment from this Op hospital then he shall have to pay the treatment expenses and accordingly, treatment was given and battery replacement was done on 21.6.2014. Procedure was done under all required conditions. Regular ASD was done. Patient was managed with antibiotics and was discharged in a stable condition. A bill of Rs. 1,72,701/- was prepared, which was paid by the complainant. Therefore, there was no deficiency in service or unfair trade practice on the part of this Op. Complaint was without merit, therefore, it be dismissed.
6. The parties were allowed by the learned District Forum to lead their evidence.
7. In support of his allegations, the complainant had tendered into evidence affidavit of Ashok Kumar Ex. C-1, authorization detail Ex. C-2, bill Ex. C-3, passbook Ex. C-4, discharge summary Ex. C-5, disability certificate Ex. C-6. On the other hand, Op No. 2 had tendered into evidence discharge summary Ex. Op-2/1, First Appeal No. 826 of 2015 8 pre-authorization request Ex. Op-2/2, repudiation letter Ex. Op-2/3 & 4, bills Ex. Op-2/5 & 6, affidavit Ex. Op-2/7, guide book Ex. Op-2/8. Op No. 3 tendered affidavit Ex. Op-3/1, form & terms and conditions Ex. Op-3/2. Op No. 4 tendered discharge summary Ex. Op-4/1, bill Ex. Olp-4/2, OPD card Ex. Op-4/3, pre-authorization letter Ex. Op- 4/4, ID Ex. Op-4/5, snap of Ashok Kumar Ex. Op-4/6, ECG report Ex. Op-4/7, bill Ex. Op-4/8, detail of pacemaker Ex. Op-4/9, pacemaker Ex. Op-4/10 to 12, MOU Ex. Op-4/13, authorization detail Ex. Op- 4/14, undertaking Ex. Op-4/15, discharge summary Ex. Op-4/16, affidavit of Dr. G.S. Wander Ex. Op-4/17.
8. After going through the allegations in the complaint, written versions filed by Op Nos. 2 to 4, evidence and documents brought on the record, the learned District Forum vide impugned order allowed the complaint after observing that Op No. 4 had received a sum of Rs. 1,72,701/- from the complainant whereas only battery replacement was done as per the discharge summary. As per the agreement between Op Nos. 1, 2 & 4 package for pacemaker implantation for permanent pacemaker is just Rs. 66,000/- but against this agreement, Op No. 4 charged a sum of Rs. 1,72,701/-, therefore, a sum of Rs. 1,06,701/- was charged in excess by Op No. 4, accordingly, complaint was allowed with the direction to Op Nos. 1, 2 & 4 as referred above.
9. Aggrieved with the order passed by the learned District Forum, appellant/OP No. 4 and appellant/Op No. 2 have filed their appeals.
First Appeal No. 826 of 2015 9
10. We have heard the learned counsel for appellant/Op No. 4 Sh. K.S. Cheema, Advocate, who appeared on behalf of Mr. D.S. Sobti for Op No. 4 and counsel for respondents No. 1 Sh. Binderjit Singh, Advocate, counsel for respondent Nos. 2 & 3 Sh. Nitin Gupta, Advocate and counsel for respondent No.4 Sh. Kamal Grover, Advocate.
First Appeal No. 826 of 2015
11. This appeal has been filed by Op No. 4. It has been argued by counsel for Ops that complainant was admitted with Op Hospital for battery replacement, which was done on 21.6.2014. A sum of Rs. 66,000/- was sought from insurance company as per the MOU entered between the parties in May, 2014 Ex. Op-4/13 but actually it was not replacement of battery but of entire pacemaker a sum of Rs. 1,09,500/- was charged as cost of the pacemaker (Red-1) (Medtronic), in this way, a bill of Rs. 1,72,701/- was prepared and it was paid by the complainant. However, it is necessary to go through MOU between the parties. As referred above, Clause No. 2.6 reads as under:-
"2.6 It is agreed between the parties that the package will include the charges for the below:
Bed charges (General Ward), Nursing and boarding charges, Surgeons, Medical Practitioner, Consultant's fees, anesthesia, oxygen, OT charges, cost of surgical appliances, medicines & drugs, X-ray & diagnostic tests, food for patient and all the expenses necessarily incurred for the treatment of the specified First Appeal No. 826 of 2015 10 ailment. The list of the services and the applicable charges are mentioned in annexure I."
Then Clause 4.16(a) is relevant, which reads as under:-
"a) If the beneficiary voluntarily opts for the implant of higher cost, room of higher category and gives the written consent for the same. The undertaking also needs to be taken from the beneficiary in such cases that he will not be claiming for the amount to the United India Insurance Co. Ltd. In an event it is observed at any stage that the hospital has persuaded / induced / coaxed the beneficiary to opt for any facility / consumable / implant/ line of treatment that is beyond the purview of the Rate list and this MOU, the hospital will be liable for de-empanelment with immediate effect along with forfeiture of all pending payment / any disciplinary action as decided by the Trust at its absolute discretion."
and for general package charges for Pacemaker - Double Chamber has been referred as Rs. 66000/- and under the package general conditions for pacemaker implantation package is inclusive of:-
"7 days hospital stay Lab Investigation (One time only) : Complete Haemogram, ESR, Urine R/E, BT, CT, PT (INR), Rapid Hbs Ag, Rapid HIV, Rapid HCV, RBS, Sr. Cholesterol, RFT, LFT, Blood Grouping, ECG, X-ray Medicine (excluding medicines not manufactured in India if used) Professional Fee"First Appeal No. 826 of 2015 11
Additional Charges will be levied as under:-
"Cost of Single/Double Chamber Pacemaker, Bi-ventricular Pacemaker, AICD Device will be charged extra. For Hbs Ag, HIV & HCV +ve Patients 20% extra will be charged extra.
All Charges relating to stay beyond specified package days."
According to this Clause, the cost of the Single/Double Chamber pacemaker will be charged extra otherwise package charges will be Rs. 66,000/-.
12. Now it is to be determined what treatment has been given by Op to the complainant. In case we go through the written reply filed by Op No. 4 in the hospital course, it has been mentioned that on 7.6.2014 after investigation doctor advised him for battery replacement and in the hospital course, it has been mentioned battery replacement was done on 21.6.2014. Then there is discharge summary Ex. Op-2/1 in which procedure done has been referred battery replacement done on 21.6.2014. When the complainant approached Op No. 4 for the first time, he had showed his insurance card and his cashless request was forwarded by Op No. 4 in which package rate has been mentioned as Rs. 66,000/-. But lateron a bill of Rs. 1,72,701/- was prepared. Apart from that, telephone charges, visiting fee, pocket report card, patient kit charges, nursing care charges have been charged in the bill Ex. Op-2/6 whereas in Ex. Op- 2/5, bill of Pacemaker Implantation Double Chamber Package Rs. 66,000/-, which includes Doctors Visiting fee as well as Nursing Care, therefore, it was also unfair on the part of Op No. 4, which includes First Appeal No. 826 of 2015 12 Nursing Care Charges and visiting fee of the Doctor in the bill when Rs. 66,000/- were separately charged by Op No. 4 under the package. Orally it was argued by the counsel for Op No. 4 that simple battery replacement is not possible and the entire pacemaker is required to be changed. He has placed some literature from the internet 'Whole Pacemaker Needs Replacing' wherein question was raised as under:-
"Question: My Battery is low - so why does my whole Pacemaker needs to be replaced?
I have a pacemaker which was implanted about six years ago. On my last checkup, my doctor told me that my pacemaker battery is getting low and will need to be replaced within a month or two. Fine, I was expecting for this to happen at some point. But my doctor says that instead of just putting in a new battery, the whole pacemaker must be removed, and a brand new one put in. That seems like a waste. Why can't they just replace the battery in the pacemaker I already have, or better yet, put in a rechargeable battery like I have in my iPhone? and it was also answered as under:-
"Answer:- These are really good questions. Let me begin by briefly reminding you of what a pacemaker is and what it does. Then I will directly address your specific questions about pacemaker batteries.
A pacemaker consists of a tiny but sophisticated computer, software instructions for that computer, various delicate electronic components, and a batter - all enclosed within a First Appeal No. 826 of 2015 13 small metal container. (A typical pacemaker today is about the size of a 50-cent piece, and about three times as thick.) Pacemakers are usually implanted under the skin, just below the collarbone, and are connected by leads - or insulated wires
- to your cardiac chambers. The pacemaker monitors your heart rhythm, beat-by-beat, and makes moment-to-moment decisions about whether or not it should pace your heart. If your heart rate falls below a pre-determined value, it "paces" by sending a tiny electrical impulse to your heart through the lead, thus stimulating your heart to beat."
This literature is not from any authenticate Medical Book. Even if it is correct that literature is correct and the entire pacemaker is required to be replaced, not only the battery but we are concerned what actually was done by Op No.4. The entire record of the hospital says that only battery replacement was done on 21.6.2014. Even pre- authorization request of the complainant was sent for Rs. 66,000/- when they knew that coverage was upto Rs. 1,50,000/-. In case they were in the knowledge that cost of the pacemaker will be extra from that and it will be extra from the package charges and that it will increase more than Rs. 1,50,000/- then cashless demand should have been to the extent of Rs. 1,50,000/- but they demanded only Rs. 66,000/-, which bears the signature of Dr. G.S. Wander, Chief Cardiologist of Op No. 4. According to the procedure done by Op No. 4, they were entitled only for Rs. 66,000/- as per MOU between the insurance company and Op No. 4. In this way, they charged an excess of Rs. 1,06,701/- from the complainant and District Forum has First Appeal No. 826 of 2015 14 rightly held that Op No. 4 is liable to refund that amount. During the course of arguments, counsel for Op No. 4 was unable to convince before us how they are entitled to the cost of pacemaker when they had done only battery replacement, which is covered under the package. Therefore, we affirm the findings of the District Forum qua Op No. 4.
13. In view of the above, we do not see any merit in the appeal filed by appellant/Op No. 4. The same is hereby dismissed with costs of Rs. 5,000/- to be paid by the appellant/Op No. 4 to the respondent/complainant within 30 days from the receipt of the copy of the order.
14. The appellant/Op No.4 had deposited an amount of Rs. 25,000/- with this Commission in the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent No.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
15. Remaining amount, if any due, shall be paid by the appellant/Op No.4 to respondent No.1/complainant within 30 days from the receipt of the copy of the order.
First Appeal No. 866 of 2015
16. It has been argued by counsel for the appellant/Op No. 2 that as per the record of Op No. 4 they have changed the battery replacement but there is no coverage for the battery replacement. Accordingly, the claim was rightly repudiated by Op Nos. 1 & 2. Further in the case of pacemaker, the maximum liability of this Op for First Appeal No. 826 of 2015 15 replacement of pacemaker single chamber Rs. 15,919/- and double chamber Rs. 17,219/-, therefore, the liability fixed by the District Forum against Op Nos. 1 & 2 for making payment of Rs. 66,000/- to the complainant is incorrect and is liable to be set-aside.
17. It has not been denied that the complainant had the insurance coverage from Op No. 2 being Member of Op No. 3 and insurance card was issued to the complainant by Op No. 1. This Op has further placed on the record, the scheme of Op No. 1 issued under BGSS Scheme and according to this scheme, cardiac surgery upto Rs. 1,50,000/- are covered. Pacemaker is related to cardiac surgery. In case any difficulty has come in the pacemaker and battery is required to be replaced then it is covered under the policy terms and conditions to the extent of Rs. 1,50,000/-. During the course of arguments, counsel for the appellant was unable to convince how this treatment was not covered under the insurance policy covering cardiac surgery, therefore, the District Forum has given the correct findings and we affirm the same that replacement of battery is covered under cardiac surgery and is covered under the insurance scheme issued by Op Nos. 1 & 2 to which the complainant is Member.
18. The next point raised by the counsel for the appellant is with regard to the cost of the pacemaker as referred above. However, in case we go through the written reply filed before the District Forum by Op No. 2, they did not refer that the cost of the pacemaker will be referred as 'single chamber Rs. 15,919/- and double chamber Rs. 17,219/-'. Before the District Forum, Op No. 2 placed on the record, First Appeal No. 826 of 2015 16 discharge summary of the patient Ex. Op-2/1, request for pre- authorisation letter given by Op No. 4 in the name of Op No. 1, Ex. Op-2/4 is denial by Op No. 1 for not allowing the cashless facility. Ex. Op 2/5 is the detail of pacemaker implantation of double chamber package, Ex. Op-2/6 is the bill of Rs. 1,72,701/- raised by Op No. 4. Ex. Op-2/7 is the affidavit of Mr. P.L. Dhingra, Manager of the Company. Ex. Op-2/8 is the Guidebook of BGSS Scheme, therefore, no such document has been placed on the record by Op No. 2 that the cost of single/double pacemaker will be as referred by them in the grounds of appeal. Apart from that the procedure charges, lab expenses and other related charges are to be calculated and total package is for Rs. 66,000/- as agreed between Op Nos. 2 & 4. Therefore, now they cannot take a new plea that the charges of the single pacemaker will be referred as referred above without any document on the record. Rather they are estopped to take such a plea when in principal under the MOU, they had agreed to pay package charges of Rs. 66,000/-, therefore, District Forum was justified to order Op Nos. 1 & 2 to pay Rs. 66,000/- to complainant, which they were also liable to pay to the hospital for treatment of the complainant. Since complainant paid that from his own pocket, therefore, under the policy, he is entitled to get back this amount. The findings of the District Forum on this point are correct.
19. In view of the above discussion, we do not see any merit in the appeal and the same is dismissed with no order as to costs.
20. The appellant/Op No.2 had deposited an amount of Rs. 25,000/- with this Commission in the appeal. This amount with First Appeal No. 826 of 2015 17 interest accrued thereon, if any, be remitted by the registry to the respondent No.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
21. Remaining amount, if any due, shall be paid by the appellant/Op No.4 to respondent No.1/complainant within 30 days from the receipt of the copy of the order.
22. The arguments in these appeals were heard on 29.4.2016 and the orders were reserved. Now the orders be communicated to the parties as per rules.
23. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
24. Copy of this order be placed on F.A. No. 866 of 2015.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member May 5, 2016. (Surinder Pal Kaur) as Member