State Consumer Disputes Redressal Commission
National Ins Co.Ltd vs Hemantkumar Jayntilal Patel on 10 July, 2023
Details DD MM YY
Date of Judgment 10 07 2023
Date of filing 12 10 2021
Duration 29 08 01
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
Court No. 4
First Appeal No.21/541
National Insurance Co. Ltd.,
Shop No.3774, Old Business Centre,
Near Navrangpura Bus Stand,
Taluka: Umreth, Anand ...Appellant
Vs
1. Hemantkumar Jayantilal Patel,
Aged: 65, Occupation: Advocacy,
Resident: "Aradhya" Near Civil Court
Taluka: Anand
Dependent - Beneficiary:
Anjanaben Hemantkumar Jayantilal Patel
Aged: 62 years, Occupation: Housewife,
Resident: "Aradhya" Near Civil Court,
Taluka: Anand ...Respondents
APPEARANCE: K. S. Pathak, Ld. Adv. for the appellant
J. M. Gajjar ,Ld. Adv. for the respondent.
CORAM: Hon‟bleMr. R. N. Mehta, Presiding Member
Hon'bleMs. 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 Anand dated 09.02.2021 in complaint no.437/2018.
2. When the matter was called out Ld. Adv. Ms. K. S. Pathak for the appellant was present. None appeared for the respondent.
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Impugned judgment
3. Ld. District Commission on merits exonerated opponent no.2 TPA E -Meditek and directed the opponent no.1 National Insurance Company Ltd. to pay to the complainant Hemantkumar Jayantilal Patel Rs.97,595/- at 9% interest within 2 months from the date of complaint 31/12/2018 and Rs.5,000/- for mental agony and Rs.3,000/- for litigation cost.
Facts of the case
4. The complainant had a mediclaim policy bearing no.
316003501610000076 for sum insured of Rs.5,00,000/- and cumulative bonus of Rs.2,50,000/- from the opponent insurance company for himself and his wife for the period 02/08/2016 to 01/08/2017. During subsistence of the policy period, on 07/03/2016 complainant‟s wife Anjanaben Hemantkumar Patel was admitted in the Nishant Eye Hospital Retina Care and Laser Center for the treatment of right eye cataract. The total expenses incurred for the treatment were Rs.1,21,595/-.The complainant lodged the claim with the insurance company, and sent all requisite documents. The opponent allowed the claim of Rs.24,000/- and deducted Rs.97,595/- from the claim amount. The complainant states that the opponent deposited without intimation, Rs.24,000/- through NEFT in the account of the complainant. The complainant has alleged that despite being entitled to the full amount, the opponent has not allowed the total claim, and therefore filed a complaint before the Ld. District Commission alleging deficiency in service and unfair trade practice on the part of the opponent.
Arguments of the appellant/original opponent
5. The Ld. Adv. for the appellant has averred that the Ld. District Commission has erred by not considering written notes and arguments and the written statement of the appellant. It is averred Akshay A/21/541 Page |2 that the payment made to the complainant was as per terms and conditions of the policy. It is contended that the Ld. District Commission has erred in holding the appellant liable to pay award to the complainant. Appellant states that the order of the Ld. District Commission is bad in law and contrary to the well established principle of law. Therefore, the order of the Ld. District Commission should be quashed and set aside.
Arguments of the respondent/original complainant
6. The respondent has submitted written synopsis and stated that the appellant has not led any evidence to substantiate the deductions made from the claim of the complainant. It is submitted by the respondent that the appeal memo is very vague and devoid of any substance. It is alleged that the appeal has been filed to justify the pleadings in the written statement before the Ld. District Commission. The appellant has not placed on record, the record and proceedings before this Commission so as to enable to appreciate rival submissions of parties. The respondent states that the order of the Ld. District Commission is just, fair and reasonable and there is no infirmity which requires interference and therefore prayed that the appeal should be dismissed with cost.
Merits of the case
7. The undisputed facts of the case are that the respondent was holding the policy of the opponent since 10 years and it was being renewed every year. It is during the existence of the policy that the complainant‟s wife, the beneficiary under the policy was operated for removal of cataract in the right eye with intraoculer lens implantation by Phacoemlisificaton with femtosecond laser (lensex). The complainant had lodged the claim of Rs.1,21,595/- for the expenses incurred for the cataract surgery. However, Appellant vide letter dated 29/04/2017 settled the claim of Akshay A/21/541 Page |3 Rs.24,000/- only. The amount was directly deposited through Emeditek, TPA of the appellant to the complainant‟s account through NEFT. The appellant deducted Rs.97,595/- from the claim amount of the insured.
8. The issue for adjudication is whether the appellant was justified for the deduction made in the claim amount of the complainant. The appellant has produced the claim approval voucher at page 85 which reads as under:
We would like to inform you that the claim lodged (Claim No.104031701160) under the policy Individual Mediclaim Policy, policy number: 316003501610000076 on Mar 03, 2017 has been approved for Rs.24000 (Twenty Four Thousand Rupees). The payment is under process & same will be released shortly.
Deduction Details
Type Charges Type Deducted Reason
Amount
Hospitalization Intraocular 32100.00 NP AS REASONABLE
Lens CUSTOMARY
Hospitalization Nursing 400.00 NP NC DAYCARE
Charges PROCEDURE
Hospitalization OT Charges 1000.00 NP AS REASONABLE
CUSTOMARY
Hospitalization Pharmacy 95.00 NP AS REASONABLE
Charges CUSTOMARY
9. The appellant has produced the receipt of the amount paid by the insured at page 120 Date of Admission Date of Operation Date of Discharge 07/03/2017 07/03/2017 07/03/2017 Billed to : Patient Operation : RIGHT EYE OPERATED ON 07/03/2017 Particulars Amount CONSULTATION/ FOLLOWUO CHARGE 500.00 OPERATION CHARGE 23,000.00 ROOM CHARGE 1,000.00 OPERATION THEATRE CHARGE 3,000.00 IOL COST 42,100.00 NURSING CHARGE 400.00 PI+ FLACS WITH LENSX 50,000.00 Total Amount 120,000.00 Akshay A/21/541 Page |4 Received Amount: 120,000.00 Payment Mode: Cash Received with Thanks the Sum of Rs. 120,000.00 ( Rupees One Lakh Twenty Thousand Only) from ANJANABEN H PATEL (Mr.No: 17-00251/AN) only by Cash-
10. The appellant has also produced the bills submitted by the insured of Rs.1,595/- at page 121 and Rs.1,000/- at page 126. The total amount paid by the insured supported by bills is Rs.1,21,595/- for which the claim was made. The discharge summary is at page
119.
11. The appellant as per the claim voucher paid only Rs.24,000/- to the insured as is seen in the claim approval voucher above. The major deduction is towards Intraocular Lens (IOL). The bill amount for IOL is shown as Rs.42,100/-. The bill is supported by the sale invoice at page 125. The insured has claimed amount actually paid by her for the purchase of the implant. The appellant deducted Rs.32,100/- and paid Rs.10,000/- as implant cost to the complainant. The reason mentioned in the claim voucher for deduction is as per reasonable and customary charges.
12. The appellant has relied on clause 3.29 of policy terms and condition which is reproduced as below:
3.29 Reasonable and Customary charges means the charges for services or supplies, which are the standard charges for the specific provider and consistent with the prevailing charges in the geographical area for identical for identical or similar services, taking into account the nature of the illness/injury involved.
13. In the written notes of the appellant of the appeal memo, it is stated that the deductions are made as per policy terms and conditions. The appellant states that the Ld. District Commission has overlooked the contention of the written statement by the appellant, which justifies the opponent having made the deduction as per reasonable and customary charges.
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14. Now if we examine the contention raised by the opponent in the written statement at page 17 it is stated that:
.....the complainant no. (2) of this matter was operated upon right eye for cataract and lenses were implanted and because of this treatment, the patient's eyesight ability increases and as a result of which the need of wearing spectacles does not arise. Moreover the lenses which are manufactured in India, costs very low, Whereas the lenses manufactured in foreign and imported, are very very costly in comparison to the lenses manufactured in India and because of that the cost of the lenses bought by the complainant is very high.....
....Moreover this is to inform you that the purpose of the Consumer Protection law is the consumers get proper justice But we the present opponent insurance company inform with humble request that if the complainant had not taken mediclaim policy, would he have taken this treatment? In many hospitals all over India, the treatment of cataract is given in very reasonable and in the least expenses and a great difference is seen in the prices of the lens manufactured in India and Foreign and in that circumstances, the present opponent insurance company humbly believe that the treatment of cataract can be done very nicely and easily in Rs. 24,000/- and an continuity of which, the guideline about cataract treatment expenses is given by the present opponent insurance company's head office, wherein "Reasonable & customary expenses only" is mentioned, which has been submitted by list herewith and in such circumstances, Rs. 24,000/- given to the complainant towards the treatment of cataract is worth & reasonable.
15. The opponent states that in Rs.24,000/- a „nice and easy treatment‟ of cataract can be done. On what basis the opponent has arrived at this amount, there is no explanation or evidence.
Also it is to be noted that the policy does not exclude cataract surgery. It does not mention limit of charges or type of lens. Therefore the opponent does not have this condition as defence to decide on the amount to be disbursed for the cataract surgery.
16. The opponent has also not brought any evidence to show a comparison or competitive charges for the deduction made on the amount claimed for IOL, nursing charges, pharmacy charges neither in the written statement of the opponent, the written notes Akshay A/21/541 Page |6 of arguments nor in the appeal memo or in the oral pleadings. The appellant has failed to produce on record any cogent evidence or expert opinion to substantiate the contention that the cataract surgery undergone by the insured establishes that the surgery of the insured for removal of cataract in the right eye with intraoculer lens implantation by Phacoemlisificaton with femtosecond laser (lensex) could be done in Rs 24,000/-.
17. The appellant has misdirected itself while concluding that the insured‟s surgery could be done in Rs 24,000/- and arbitrarily encroached upon the right of the insured to select the implants to be used for insured‟s body.
18. The stand taken by the appellant raises many questions. Is it the role of the appellant insurance company to decide which treatment the insured is to take? Is it the role of the insurer to decide as to how much amount is needed for the so called "nice and easy cataract treatment"? Is it the role of the insurer to decide whether the Doctor implants Indian or foreign made Lens? 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 plan of the Doctor. The insurer can interfere only where the terms and conditions of the policy allow, and when the insured has used her discretion in deciding which implants are to be used. Here in the instant case it is clear that the insured has used discretion of her own for choosing implant in consultation with the treating doctor, and incurred such expenses, which is within her right, as the policy terms and conditions do not have any restrictions on the amount as expenses or the type of lens for the surgery.
19. From the facts and the circumstances of the case, this Commission has taken a serious view that the appellant insurance company, Akshay A/21/541 Page |7 has deducted as a routine and mechanical manner the amount from the genuine claim of the insured, on items where insured had 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 respondent the actual expenses incurred, despite there being no breach of policy conditions and forcing the respondent 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.
20. The appellant has settled the claim at Rs.24,000/- from the total claim of the insured of Rs.1,21,595/-.The appellant has not denied that the actual expenses incurred by the insured were Rs1,21,595/. The appellant in the written statement, written notes of arguments and in the appeal memo has not explained nor brought any document on record to explain how it has arrived at the settled amount of Rs.24,000/-. The opponent has failed to prove the ground for awarding the amount of Rs.24,000/- and deducting the amount of Rs.97,595/- from the claim amount of the insured for the cataract surgery on the basis of reasonable and customary charges.
21. The respondent has contended that the opponent without informing the insured, through NEFT sent reimbursement of Rs.24,000/-. There was no consent taken from the insured and no objection allowed to be put on record by the insurer. The appellant has not able to refute this contention with any cogent evidence. Further it is the case of the respondent that the schedule of terms and conditions purported to be part of the insurance policy of the relevant period has not been produced. The appellant has not Akshay A/21/541 Page |8 brought any evidence in support that the terms and conditions referred to by the appellant were provided to the insured.
22. The Ld. Adv. for the appellant drew our attention to the exclusion clause in the policy at page 35 clause 4.23 which reads as under:
Spectacles, contact lens, hearing aid, cochlear implants The appellant has stated in the appeal memo, written notes of arguments that the Ld. District Commission has erred in overlooking that after the operation in normal course "the vision of the person would be improved and subsequently he would not be required to wear glasses."The appellant‟s statement is not supported by any evidence or medical literature or expert opinion.
The appellant has failed to show any expenses incurred by the insured towards any of the above items as per clause 4.23 and therefore this ground of exclusion does not hold force.
23. Citations The appellant has referred to the following citations:
(a) Ravneet Singh Bagga and KLM Royal Dutch Airlines and anr. Reported in (2000) 1 SCC 66.
(b) General Assurance Society Ltd. v. Chandmull Jain 1966 3 SCR
500.
(c) Oriental Insurance Co. Ltd. Vs. Sony Cheriyan‟ (1999) 6 SCC 451
(d) United India Insurance Co. Ltd. Vs. Harchandrai Chandanlal 2004 8 SCC 644
(e) Polymat India vs. National Insurance IV 2004 CPJ 49 SC We do not dispute the ratio laid down in above cases but since the facts of the above referred judgments were different from the instant case and therefore not applicable.
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24. We refer to the following judgment of this Commission passed in 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 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 is squarely covered by the observation made in the judgment....
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25. The appellant has settled the claim at Rs.24,000/- from the total claim of the insured of Rs.1,21,595/-. The appellant in the written statement, written notes of arguments and in the appeal memo or in the oral pleadings, has not explained nor brought any document on record to substantiate how it has arrived at the settled amount of Rs.24,000/-. The opponent has failed to prove the ground for awarding the amount of Rs.24,000/- and deducting the amount of Rs.97,595/- from the claim amount of the insured for the cataract surgery on the basis of reasonable and customary charges.
26. From the foregoing discussions and observations, we are of the view that the appellant has failed to establish that it has any authority either by law or contract to restrict entitlement of insured in any manner. The insured was covered under the policy for Rs 5,00,000/.The insured has claimed an amount of Rs 1,21,595/.The policy does not exclude cataract surgery. The policy does not mention any limits for charges for the surgery nor the type of lens. The appellant has not denied that the insured has actually incurred the expenses of Rs 1,21,595/ for the surgery. The appellant has not adduced any cogent evidence to justify the deduction made from the claim of the respondent on the basis of reasonable and customary charges. Therefore, the respondent is entitled to the deducted amount as claimed.
27. We have considered the grounds stated in the memo of appeal, contention in written statement, written notes of arguments of the appellant, the impugned judgment and order, documentary evidence produced on record, arguments advanced by the Ld. Adv. for the appellant, ratio laid down in the above referred citations and facts and circumstances of the case. We would like to concur with the order of the Ld. District Commission which is just, fair Akshay A/21/541 P a g e | 11 and reasonable and requires no interference and confirm the same and in the interest of justice, we pass the following order.
ORDER
1. The appeal no.21/541 is dismissed
2. The order of the Ld. District Commission, Anand dated 09.02.2021 in complaint no. 437/2018 is confirmed.
3. No order as to costs.
4. Registry is directed to verify the amount deposited by the applicant in appeal no.21/541and if found deposited, refund the same with interest, if any, accrued there on the deposit to the appellant by RTGS after following due procedure and verification. For this purpose the appellant has to file an application with details to the account branch of this commission.
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, Anand through E-mail in PDF format for taking necessary action.
Pronounced by circulation today on 10.07.2023.
P. R. Shah R. N. Mehta Member Presiding Member Akshay A/21/541 P a g e | 12