State Consumer Disputes Redressal Commission
Jagdishchandra G Chauhan vs E Meditek (Tpa) Services Pvt Ltd on 10 November, 2023
Details DD MM YYYY
Date of Judgment 10 11 2023
Date of filing 16 12 2016
Duration 25 10 06
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE
COURT NO.2
First Appeal no.413 of 17
1. Jagdishchandra G. Chauhan
824, Pitru Chhaya,
Nr. Chamunda Temple
Vinjol Gam,
Ahmedabad. ...Appellant
VS
1. E Meditek (TPA) Services Pvt. Ltd.
709, 7th Floor, Sakar - V,
B/h. Nataraj Cinema
Nr. Mithakhali Railway Crossing,
Ashram Road,
Ahmedabad-9.
2. Oriental Ins. Co. Ltd.
Kalidas Chambers,
Nr. Dinbhai Tower,
Lal Darwaja,
Ahmedabad - 380001. ...Respondents
APPEARANCE: Mr. M.V. Patel, Ld. Adv. for the Appellant
Mr.Rituraj Meena, Ld. Adv. for the Respondent
CORUM: Hon'ble Ms. Archana Raval, Presiding Member
Order by Hon'ble Ms. Archana Raval, Presiding Member Nishita A-413-17 Page 1 of 10
1. The appellant original complainant has filed this appeal under section 15 of the Consumer Protection Act, being aggrieved by and dissatisfied with the order dated 16.12.2016 passes by the Ld. District Consumer Disputes Redressal Forum Ahmedabad city (Main) (hereinafter referred to as " Learned District Commission") in Consumer Complaint No.654of 2013. For the sake of convenience, the parties to the proceedings will be addressed as per their original nomenclature in the complaint
2. Heard Ld. Adv. Mr. M.V. Patel for the Appellant and Ld. Adv. Mr. Rituraj Meena for the Respondent.
3. Facts of the case 3.1 The complainant is a residence of Vinjol Gam, Ahmedabad. Complainant had purchased mediclaim policy from opponent no.2 since long. The individual Mediclaim policy was renewed lastly under policy no. 141200/48/2012/7686 for the period 18.07.11 to 17.07.12 and complainant had also purchased "Family Floater Policy" no. 141200/48/2013/782 for the period 09.04.2012 to 08.04.2013. In both the policies sum insured under the health policy was Rs. 1,00,000/- in personal policy, there was no Co-payment deduction applicable while in "Family Floater Policy" the Co-payment applicable is 10% of the sum insured.
3.2 In the validity period of the aforesaid both the policies, the complainant while donating blood at Prathma blood center on 23.03.2012, the blood sample of the complainant was found reactive for "Hepatitis C by Elisa Method". The Prathma Blood center informed the complainant not to donate blood in future till the issue resolved. The complainant was examined by Dr. Nilay N. Mehta and advised to take proper treatment. Dr. Nilay N. Mehta addressed a note to Shrey Hospital on 05.07.2012 and directed the Shrey hospital to admit the complainant. The complainant was admitted in Shrey Hospital on 05.07.2012 and Nishita A-413-17 Page 2 of 10 discharged on 06.07.2012 for the treatment of HEV Infection and for which he incurred medical expenses of Rs. 2,18,430/-. The complainant submitted his claim along with necessary documents to the opponent insurance company under both the policies. The insurance company raised certain queries which were satisfied by the complainant.
3.3 The opponent insurance company vide letter dated 24.12.2012 repudiate the claim of the complainant relying upon clause 2.3 of the terms and conditions of the policy regarding the treatment given to the complainant was outdoor (O.T.) based treatment where no hospitalization of 24 hours required. The complainant approached the Ld. District Commission Ahmedabad city (Main) for redressal of his grievance by filing C.C. No. 654 of 2013. The complaint was rejected by the Ld. District Commission. Hence, the complainant has preferred the present appeal on the ground stated in the memo of appeal.
4. Argument of the Appellant 4.1 The Ld. Adv. appearing for the appellant /original complainant argued that the complainant was found reactive for "Hepatitis C by Elisa Method" while blood donation. To cure the disease, complainant approached Dr. Nilay N. Mehta, who has treated the complainant throughout. Upon the advice and directions of the treating doctor, the complainant was admitted in Shrey hospital on 05.07.2012 to 06.07.2012. As per the discharge summery the complainant was treated for chronic HEV infection and it is clearly stated in the certificate that he was admitted for observation of the reaction of medicine administered to him.
4.2 The treating doctor has also given the certificate dtd. 28. 8.2012 where it is stated that the complainant was admitted under his care at shrey hospital on 05.07.2012 for inj. Pegainterferone and post injection observation because Pegainterferone can be cause of anaphylactic shock.
Nishita A-413-17 Page 3 of 10The insurance company has wrongly repudiated the claim of the complainant. It is for the treating doctor to decide that which type of treatment should be given and whether hospitalization is necessary or not. The complainant was admitted for the observation only when the said injection was given first time. When other injections were given, he was not hospitalized. All subsequent injections are part of the same treatment, hence, were taken as outdoor patient.
4.3 The literature produced by the insurance company and opinion taken by the insurance company are not of much relevance as it can varies with the condition of the patient. There cannot be straight jacket formula. Hence, the order passed by the Ld. District Commission is not just, proper and legal. It is against the principles of natural justice, settle position of law and the facts of the case. Hence, it is required to be quashed and set aside and this appeal be allowed.
5. Argument of the respondent 5.1 The Ld. Adv. appearing for the respondent has filed written arguments as well as argued the case before this bench. That the complainant was found suffering from asymptomatic Hepatitis C and was advised not to donate blood. The complainant was investigated and treated by Dr. Nilay N. Mehta. The complainant was admitted for Post-viroferon P.E.G observation for 05.07.2012 to 06.07.2012. Thereafter complainant was given all other injections, one per week basis. The injection taken by the complainant dose not required 24 hours hospitalization. The claim of the complainant was scrutinized upon the documents submitted by the complainant and carefully considered the terms and conditions of the mediclaim policy. Clause 2.3 of the terms and conditions forbids the treatment taken as an outdoor patient and its reimbursement.
Nishita A-413-17 Page 4 of 105.2 As per the Dr. Nilay N. Mehta, the complainant was put to post-injection observation because of pegaininterferone can be cause of anaphylactic shock. As per the literature produced before the court the reaction come within 2 to 3 hours. The 24 hours hospitalization is made only to reimburse the expenditure incurred by the complainant for administration of injections as the treatment typically performed in the outpatient department are not covered under the policy, even if they are converted to daycare procedures or result in an inpatient stay exceeding 24 hours in the hospital. The claim of Rs. 2,00,000/- entirely unfounded and unreasonable. That the complainant has only been insured for a total sum of Rs. 1,00,000/- it is further submitted that the claim of appellant was repudiated as per the terms and conditions of the policy. Further, the action of the respondent does not fall under the definition of deficiency in service and unfair trade practice provided under the C.P. Act. Therefore, the order passed by the Ld. District Commission is just proper and legal and does not require any interference.
6. Merits of the case 6.1 For deciding the present case, certain facts are undisputed that the period of policy, the sum insured and the treatment taken by the complainant. The claim of the complainant is rejected by the insurance company on the ground that the treatment taken by the complainant dose not required 24 hours hospitalization. The repudiation is produced at pg. no. 33 which reads as under:
"We are in receipt of the claim form & associated documents of JACDISHCHANDRA C CHAUHAN On scrutiny of the same. We observe that he / she was admitted in SHREY HOSPITALS PVT LTD, patient k/c/o chronic hepatitis c genotype 3. Patient admitted from 5/7/12.1:50pm to 6/7/12 5:00pm for post viroferon P.E.G. observation. Patient was given same injection 7 times after this hospitalization in OUT DOOR DEPARTMENT. Patient has concurrent policy with number 141200/48/2013/782. As per treating doctor patient first time diagnose Nishita A-413-17 Page 5 of 10 to have disease on 23/3/2012 during blood donation camp, Route of transmission of disease is unknown. [1] This injection was given on subcutaneously, so, should be given on O.P.D First injection might require to observe for some hours, but, certainly not require 24 hour hospitalization. [2] Admission was for observation purpose is outside of scope of policy. Considering this points we recommend this claim for repudiation as CLAUSE 2.3. Note."
6.2 The insurance company has relied upon clause 2.3 note of terms and conditions of the policy. The terms and conditions of the policy have been produced on record at pg. no. 47. Clause 2.3 is regarding hospitalization/nursing home and the hospitalization period. NOTE: to the clause 2.3 reads as under:
"PROCEDURES/TREATMENTS USUALLY DONE IN OUT PATIENT DEPARTMENT ARE NOT PAYABLE UNDER THE = CLICY EVEN IF CONVERTED TO DAY CARE SURGERY/PROCEDURE OR AS IN PATIENT IN THE HOSPITAL FOR MORE THAN 24 HOURS."
The insurance company has considered this treatment as an outdoor treatment. In the repudiation letter, the base for the consideration is not discussed. How the insurance company has come to the conclusion that this treatment falls under the category of outdoor treatment. It is even not clarified in the written statement that how the insurance company came to the conclusion that such treatment is an outdoor treatment. It is true that clause 2.3 excludes the treatment taken as an outdoor treatment.
6.3 In the case of the complainant, nowhere in the medical papers, it is mentioned that the patient is treated as outdoor patient. The complainant has produced on record both the policy mentioned in the complaint. The claim form is produced at pg. no. 24 to 26 where the no. of both the policy have been mentioned. The letter from Prathma Blood Center is produced at pg. no. 28. The insurance company has also produced certain documents i.e. the opinion of the Dr. Darshan M. Shah Nishita A-413-17 Page 6 of 10 dt. 14.05.2023 as an expert's opinion, the terms and conditions of the policy and the literature about the injection/treatment given to the complainant. The opponent insurance company at the fag end of the arguments produced the copy of the bills which are not part of the record before the Ld. District Commission.
6.4 The application made to place on record, the copy of the bills and invoices produced by the complainant before the insurance company. The application was not in the proper form for bringing additional evidence on record at the appellate stage. The said application is rejected vide order dt. 26.10.2023. The insurance company has mainly relied upon the opinion given by Dr. Darshan M. Shah dt. 14.05.2003, produced at pg.no. 45, which reads as under:
"According to clinical summary insured was asymptomatic but detected HCV positive accidentally at blood donation camp held by Prathma blood centre. He was consulted by Dr Nilay Mehta and investigated accordingly and advised to take Pegainterferone injection.
He was hospitalized only for giving injection as it might cause anaphylactic reaction. In my opinion anaphylactic reaction if occur only in first 2-3 hours so this injection can be given on OPD basis and 24 hours hospitalization does not look justifiable in present case. So in my opinion claim is considered as NO CLAIM."
6.5 Dr. Darshan M. Shah has given his opinion on 14.05.2013 while the claim was repudiated on 24.12.2012. Therefore, at the time of repudiating the claim, this opinion was not considered by the insurance company. It seems that the insurance company has taken this opinion to justify the repudiation of the claim of the complainant. Dr. Darshan M. Shah has not examined the patient, not treated the patient and has given opinion according to the clinical summery of the insured. The reaction of the medicine is different in all the individuals. Above all, in the opinion lastly it is stated by the expert that in his opinion, the claim is consider Nishita A-413-17 Page 7 of 10 as no claim. Whether the claim is to be entertained or not does not fall under the purview of his expertise. The doctor cannot opine that whether the claim is maintainable or not? It seems that to favour the insurance company the expert has given such opinion. This is the privilege of the treating doctor that to decide how to treat and where to treat the patient. The complainant has not taken admission in the hospital at his own. Dr. Nilay N. Mehta has written the note on Vedanta Hospital dt. 05.07.2012, directing the hospital to admit Mr. Jagdishbhai, under his care. Therefore, upon the instruction of treating doctor the patient was admitted in the hospital. The discharge card is produced at pg. no. 59 where it is mentioned that the patient was admitted for Post-viroferon P.E.G and patient was discharge on 06.07.2012 on 05pm. The treating doctor has given certificate dt.28.08.2012 produced at pg.no.60 where it is stated as under:
"This is to certify that Mr. Jagdishbhai Chauhan has chronic HCV infection. He was admitted under my care at Shrey Hospital on 5/7/2012 for Inj. Pegainterferone and post injection observation because pegaininterferone can be cause of anaphylactic shock."
6.7 Again the certificate is given by the Dr. Nilay N. Mehta produced at pg.
no. 61 where it is mentioned that, that usually they admite the patient for 24 hours during first dose of the pegaininterferone. All this certificates are given by the treating doctor and the treating doctor is the best person to decide the period of hospitalization. The literature produced by the respondent is downloaded from some internet site, regarding treatment and management of ANAPHYLAXIS symptoms and diagnosis where it is mentioned that symptoms of ANAPHYLAXIS typically start within 5 to 13 minutes of coming in to contact with the allergen to which, in the same cases it may take more than an hour for you to notice ANAPHYLAXIS symptoms. Here in this literature the Nishita A-413-17 Page 8 of 10 starting point is mentioned but how long the symptoms can rest is not mentioned. In the said literature it is mentioned that:
"Anaphylaxis is a common medical emergency and a life-threatening acute hypersensitivity reaction. It can be defined as a rapidly evolving, generalized, multi-system allergic reaction. Without treatment, Anaphylaxis is often fatal due to its rapid progression to respiratory collapse."
6.8 Therefore, in my view the Ld. District Commission has not considered the document on record in its proper prospective. Hence, impugned order is required to be quashed and set aside.
The complainant has fairly submitted that in the family health policy the basic coverage is Rs. 1,00,000/- but there is a 10% Co-payment hence, he is entitled to Rs. 90,000/- under the Family Floater Policy. The another policy in which the claim has been made, is a personal policy where the sum insured is Rs. 1,00,000/-. Therefore, though the complainant has claimed total expenses incurred by him for the said treatment. All the other injections given are under the series of the same treatment. The complainant has claim Rs. 2,18,430/- along with the interest, compensation and cost. As the amount of claim exceeds the sum insured under both the policies, so it cannot be granted entirely. The complainant is entitled to Rs. 90,000/- (10%co-payment deduction) under family floater policy and Rs. 1,00,000/- under the personal insurance policy. In total complainant is entitled to Rs. 1,90,000/- in all for the treatment taken by him.
7. I have considered the grounds stated in memo of appeal, reasons stated in impugned Judgment and order, documentary evidence produced on record, argument advanced by the learned advocate by the parties, ratio laid down in the above referred citation and fact and circumstances of the case. I am of the opinion that the Learned District Commission has not considered the documents in its proper perspective, hence,it is Nishita A-413-17 Page 9 of 10 required to be quashed and set aside and this appeal to be allowed partly. In the interest of justice following order is passed.
ORDER
1. The appeal no. 413/17 is partly allowed.
2. Order passed by the Ld. District Commission, Ahmedabad city (Main) in consumer case no. 654 of 2013 is hereby quashed and set aside.
3. Opponent insurance company is directed to pay Rs. 1,90,000/- along with 9% interest from the date of filing of the complaint till its realization.
4. The respondent is directed to pay Rs. 5,000/- towards the mental agony and hardship and Rs. 5,000/- as the cost of litigation.
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, Ahmedabad (Main) through E-mail in PDF format for taking necessary action.
Pronounced in open court today on 10.11.2023.
A.C. Raval Presiding Member Nishita A-413-17 Page 10 of 10