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State Consumer Disputes Redressal Commission

Arvindbhai C Patel vs The Oriental Ins Co Ltd on 29 September, 2023

                                               Details            DD MM        YY
                                         Date of disposal         29    09     2023
                                          Date of filing          07    03     2019
                                            Duration              22    04      06
     BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
                      GUJARAT STATE AHMEDABAD.
                               COURT NO: 02
                                                     APPEAL NO. 118 of 2019
Arvindbhai Chunilal Patel
Add.: Desai Pol, Matar,
Kheda.                                                                 ....Appellant


              V.s


The Oriental Insurance Co. Ltd.
Add: Usha Building, 1st Floor,
Near Bhaikaka Statue,
Vidhyanagar, Anad.                                                ...Respondent

Before:             Ms. A. C. Raval, Presiding Member

Appearance:         Mr. P. V. Patel, Ld. Adv. for the appellant,
                    Mr. Haresh Parmar, Ld. Adv. for the respondent.

           ORDER BY MS. A. C. RAVAL, PRESIDING MEMBER.
                                JUDGMENT

1. The appellant/original complainant has preferred this fist appeal as per the provision of Section 15 of the Consumer Protection Act, 1986 against the impugned order passed by the Ld. District Consumer Disputes Redressal Commission, Kheda at Nadiad (for short Ld. District Commission) in complaint no.113/2018 dated 05.02.2019 on the grounds stated in the appeal memo. Therefore, for the sake of convenience parties are referred to by their original nomenclature/status.

Facts of the case:

2. It is the case of the complainant that he was continuously taking mediclaim policy from the opponent insurance company from the year 2005 for himself and his family members. The complainant had the policy for the period 04.03.2017 to 03.03.2018 covering the complainant, his wife and his son for the sum insured Akshay A/118/19 Page 1 of 8 Rs.2,50,000/-. During the existence of the policy, his wife Sumitraben was operated for left eye cataract. The operation was carried out on 15.05.2017 in the Raghudeep Eye Hospital at Ahmedabad. The total expenditure incurred was Rs.86,207/-. The complainant lodged his claim before the opponent insurance company. The opponent insurance company has settled the claim for Rs.24,000/-. The complainant has requested the insurance company to pay rest of the amount towards the cataract operation.

The said request was not replied. The complainant gave the notice to the insurance company through Navodit Grahak Suraksha Mandal which was also not replied, hence, the complainant preferred the consumer complaint no.113/2018 before the Ld. District Commission Kheda. Ld. District Commission has partly allowed the complaint and direction was given to the opponent insurance company to pay Rs.27,616/- along with the interest at the rate of 7% from the date of filing of the complaint till its realization with cost of litigation. Being aggrieved by and dissatisfied with the order of the Ld. District Commission dated 05.02.2019, the appellant has preferred this appeal for certain direction against the opponent insurance company to pay remaining amount of Rs.34,411/- along with the interest cost and compensation.

3. I have heard Ld. Adv. Mr. P. V. Patel for the appellant and Ld. Adv.

Haresh Parmar for the respondent.

Arguments of the appellant

4. Ld. Adv. appearing for the appellant has argued that the complainant was having mediclaim insurance policy for himself and his family members for Rs.2,50,000/- as sum insured. The wife of the complainant was operated for cataract in left eye and the total expenditure incurred was Rs.86,027/- which was much less than sum insured and there is no limit prescribed in the policy for awarding the amount at specific rate. The complainant has Akshay A/118/19 Page 2 of 8 produced the invoice and bills for the amount paid to the hospital. These are the actual expenses which should be reimbursed by the insurance company. It is the choice of the insured that where and from whom he wants to take the treatment. The insurance company has failed to justify the amount of Rs.24,000/- for settlement of the claim and the Ld. District Commission has not justified that how the Forum is arrived at the rate of 60% as reasonable amount for the treatment taken by the insured. The Ld. District Commission has wrongly relied upon the zeiss cataract communities' report available on the internet. The opponent insurance company could not clarify that how this report is applicable in the case of the complainant. Hence, the complainant is entitled to the total amount claimed in the complaint and the order passed by the Ld. District Commission may be quashed and set aside and this appeal may be allowed.

Arguments of the respondent

5. Ld. Adv. appearing for the respondent argued that the claim of the complainant was settled by the insurance company on the ground of customary and reasonable basis. The amount of Rs.24,000/- was paid to the complainant which was accepted by the complainant without any protest. The impugned order in CC No.113/2018 was passed by the Ld. District Commission for awarding of Rs.27,616/- with 7% interest along with the cost and compensation of Rs.2,000/-. Though it was the firm belief of the insurance company that the complainant is entitled to Rs.24,000/- as per the reasonable and customary charges for the said operation, the insurance company has paid the amount awarded by the Ld. District Commission vide order dated 05.02.2019. Even after availing the award amount, the complainant has continued the proceedings in Appeal. Hence this Appeal may be dismissed.

Merits of the case

6. The undisputed facts for deciding this case are the period of policy, amount of sum insured and the treatment taken by the wife of the complainant. During the policy period, the wife of the complainant was treated for the left eye cataract. The bills were raised by the hospital for Rs.86,027/-. The complainant has produced on record the copy of the invoices and bills, copy of the insurance policy, the discharge summary and other medical papers given by the treating Doctor, claim form and the letter written by the complainant for reconsideration to the insurance company and the notice given by the Navodit Grahak Suraksha Mandal to the insurance company. The settlement letter is not produced on record, neither the written statement of the insurance company field before the Ld. District Commission is produced on record by either of the parties to the proceedings.

7. It transpires from the judgment rendered in CC no.113/2018 dated 05.02.2019 by the Ld. District Commission that the insurance company has resisted the complaint on the basis of reasonable and customary expenses. It is further transpires that the respondent company has produced on record the zeiss cataract communities report about the expenses which may be incurred for the cataract operation in India. The insurance company has relied upon this report which was not carried out by the insurance company neither was considered at the time of awarding the settlement amount of Rs.24,000/-. This is just an afterthought and abstract taken from the internet produced before the commission. Insurance company has failed to establish that how this report is helpful to the insurance company. In the written statement, the insurance company has taken the stand that if the complainant could have opted for the lens manufactured in India, they could have paid the less amount. The insured has opted for the foreign lens which was much expensive than the Indian one. Complainant could have Akshay A/118/19 Page 4 of 8 saved money by opting for the Indian lens. It is the privilege of the insured that from whom and from where he should take the treatment. The insurance company cannot have any say about the choice of the Doctor and hospital or the quality of lens to be used, when the limit for particular treatment is not fixed and the expenditure incurred by the insured are less then sum insured, the insured is entitled to entire amount for which the claim has been made.

8. From the above facts it can be seen that the major deduction is towards the implant. The appellant has produced copy of the hospital bill at page No. 24 to 26. The insured has claimed the amount actually paid by him for the purchase of the implant and the treatment. The insurance company has paid only Rs. 24000/- towards the cost of his implant and treatment. No where it is clarified by the Insurance Company that how it has arrived to the figure of Rs. 24000/- as a reasonable and customary charges for the entire treatment. There is no comparison or competitive charges for the same item has been cited by the Opponents. In the written statement, the only thing mention for the grant of such amount is the insured was entitled to reimbursement of the bill amount as per the terms and conditions of the contract of Insurance but nowhere it is mentioned that reliance is made upon which term and condition of the contract and what are the grounds for calculating the amount under the head of reasonable and customary charges. The insurance company has failed to prove the ground for awarding the amount on the basis of reasonable and customary charges. Hence, the appellant is entitled to the amount claimed after deduction of the total amount received till date.

9. I have considered the 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 t60,000/- 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 insurance company and also IRDA to fix the amount in cataract operation considering the sum insured by the insurer in its medical Akshay A/118/19 Page 6 of 8 policy. There cannot be lump sum 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/-"

10. The case of the appellant is squarely covered by the observation made in the judgment. The complainant is entitled to the amount of Rs. 34,411/- (86,027-24000-27,616) along with 7% interest from the date of filing of the complaint.

11. 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 appearing for the parties, ratio laid down in the above referred citation and fact and circumstances of the case. We are of the view that the order passed by the Learned District Commission is required to be quashed and set aside and appeal should be partly allowed. Hence in the interest of justice following order is passed.

ORDER

1. The appeal No. 118/19 filed by the appellant is hereby partly allowed.

2. Impugned order passed by the Ld. District Consumer Disputes Redressal Forum, Kheda at Nadia, in Consumer Complaint No. 113/2018 dated 05.08.2019 is hereby modified, and the the original opponent insurance company is directed to pay to the complainant additional amount of Rs.34,411/- along with the interest @ 7% from the date of filing of the complaint till the realization of the amount.

3. The rest of the impugned order passed by the Ld. District Consumer Disputes Redressal Forum, Kheda at Nadia, in Consumer Complaint No. 113/2018 dated 05.08.2019 is hereby confirmed.

4. No order as to costs.

5. Registry is hereby instructed to send a copy of this order in PDF format by E-mail to Ld. District Forum, Kheda at Nadiad for taking necessary action.

6. Office is directed to give a free of cost certified copy of this judgment and order to the respective parties.

Pronounced in the open Court today on 29th September, 2023.

[A. C. Raval] Presiding Member Akshay A/118/19 Page 8 of 8