State Consumer Disputes Redressal Commission
Shri. Narsinva Alias Subhash vs The Divisional Manager, on 21 January, 2014
BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION PANAJI GOA FA No. 98/2013 Shri. Narsinva alias Subhash Manohar Dhond, 65 years Of age, married, businessman, R/at S-1, Madhuban Building, Opp. St. Inez Church, St. Inez, Panaji Goa. Appellant/Original Complainant v/s. 1. The Divisional Manager, HDFC Bank Ltd., 4th floor, Milroc lar Menezes Building, Opp. Old Passport Office, Swami Vivekanand Road, Panaji Goa. Respondent No. 1/Original Opp. Party No. 1. 2. The Divisional Manager, United India Insurance Company Ltd., Divisional Office, 2nd floor, Mascarhenas Building, M.G. Road, Panaji Goa. Respondent No. 2/ Original Opp. Party No. 2. 3. M/s. Family Health Plan Limited, 206, Parvati Industrial Estate, Sun Mills Compound, Lower Parel (West), Mumbai 400 013. Respondent No. 3/Original Opp. Party No. 3. Appellant is represented by Adv. Shri. D.M. Dhond. Respondents are represented by Adv. Shri. E. Afonso. Coram: Shri Jagdish Prabhudessai, Member. Smt. Vidhya Gurav, Member Dated: 21 /01/2014 ORDER
[Per Shri. Jagdish Prabhudessai, Member.] By this order we shall dispose off the present appeal filed by the Appellant herein, inter alia, challenging the order dated 17/10/13 passed by the Lr. North Goa District Forum in complaint No. 53/08.
Vide the impugned order dated 17/10/13, the Lr. Lower Forum has disposed off the complaint filed by the complainant i.e. the Appellant herein in complaint No. 53/08.
The Lr. Forum vide the impugned order has allowed the said complaint and directed the OP No. 2 therein to pay to the complainant Rs. 50,000/- together with simple interest at 9% p.a. thereon from 1/3/07 (being the date of the claim rejection vide letter of 22/2/07 till actual payment and compensation of Rs. 10,000/- with costs of Rs. 5000/-).
We called for the record from the Lower Forum in complaint No. 53/08 and perused the same.
We have also heard arguments in detail advanced by both the counsels for the parties to the present appeal.
The case of the Appellant as presented before the Lr. Lower Forum in the said complaint was that he went for medi-claim policy under Group Medi-Claim for HDFC Plus Credit Card with the OP No. 1 that is HDFC Bank Ltd., who had a tie up with the OP No. 2 i.e Insurance Company Ltd., under policy No. 010400/48/05/00354 valid for a period from 23/11/2005 to 22/11/2006.
The Appellant in the month of May 2006 started having headache and therefore contacted his family Dr. Oscar Rebello who on examining the complainant, referred him to an eye specialist Dr. Alka Prabhudessai (M.D.) to have a thorough eye pressure checked and also advised him to a CT Scan of his head and after obtaining CT Scan Reports, advised the Appellant to show the said report to Dr. Jindal, Head of Neuro Surgery and Dean of Goa Medical College, Bambolim, Goa, who after examining asked the Appellant/Original complainant to carry out MRI test.
The Appellant i.e. the original complainant alleged in the complaint that after completing of all the required tests, it was found that the Appellant had a Pituitary gland Tumor and was further advised to have a second opinion at Bombay Hospital, Mumbai, with Dr. B.S. Singhal, Professor and H.O.D. of Neurology of the said Hospital in order to avoid any surgery and the said hospital after conducting number of tests and Dr. Singhal after examining all the reports advised the Appellant/Original Complainant to refer the said reports to Dr. Chandrashekhar Deopujari, Neuro Surgeon of Bombay Hospital. The case of the complainant is that after the entire file was presented before Dr. Chandrashekhar Deopujari, who examined the said reports and confirmed that a Cyst prevails in the forehead and the same has to be removed through endoscopy immediately.
On admitting in Bombay hospital and Medical Research Centre on 6/06/06 for the purpose of the above surgery, the Appellant/complainant was operated on 7/6/06 and got discharged on 9/6/06. The Appellant/original complainant submitted the entire bills of Bombay hospital and Medical Research Centre when to give with the necessary documents to the office of the OP No. 3, amounting to Rs. 1,66,897.50.
Lr. Adv. Shri. Dhond for the Appellant has contended that the OP No. 3 has failed to settle the above bills and delayed to settle the same despite several representations made on their behalf.
Financially, vide letter dated 22/02/07 the said OP repudiated the claim as the same claim allegedly did not fall under the purview of the said policy for the reasons stated in the said letter.
Lr. advocate also argued further that the impugned order passed by the Lr. Lower Forum is not tenable at law and is devoid of any substance.
On the other hand Lr. Adv. Shri. Afonso for the Respondents opposed the bill on the ground that there is no material illegality in the order passed by the Lr. Forum. However, the Lr. Adv. Shri. Afonso fairly conceded that the impugned order passed by the Lower Forum allows only part payment of Rs. 50,000/- together with interest.
After hearing both the counsels for the parties we are of the considered opinion that the claim of the complainant i.e. Appellant herein as set out in the original complaint is justifiable and that the OP No. 3 was not justified in rejecting the claim since. We are unable to agree with the findings of the Lower Forum that the insured amount as per policy was Rs. 50,000/- and Tertiary cover could be availed as per policy terms only for the four tertiary diseases. In our opinion the District Forum went wrong in holding that since the claim of the Appellant was not among these four, he would not be entitled to this tertiary cover of Rs. 1,50,000/-.
It is also pertinent to note that Lr. Adv. Shri. Afonso for the Respondent relied on the policy document and has undertaken to produce the original policy document which has failed to do so.
In our considered opinion though Lr. Forum has rightly concluded that the alleged acts of Commission and omission on part of the OP No. 2 did amount to deficiency in service as defined in the C.P. Act, 1986, we are however, inclined to take the view that the Lr. District Forum ought to have allowed entire claim of the complainant, hence in our opinion there is material irregularities in the impugned order as regards the claim preferred by the Appellant herein in the original complaint.
In the course of the argument Lr. Adv. Shri. Dhond for the Appellant has cited the relevant literature on the aspect of the plan demolish from the point of view of Neuro Science which can be represent as under:-
(i) Brain Tumours can be treated only in Tertiary level care giving centres. So all brain tumours requires special equipment such as microscope, neuro-endoscope, micro-instruments and special anesthesia techniques. So the patientss condition is also a tertiary disease being a brain tumour, requiring super speciality care viz.
neuro-surgery. This condition cannot be treated in any small neuro hospitals or small hospitals.
(ii) An untreated tumour including Pituitary Tumour or cyst can cause catastrophic consequence i.e. blindness of both the eyes, paralysis of one or both the sides, raise intra-cranial pressure which can even lead to death. This tumour if increased in size, can obstruct circulation of fluid in the brain leading to hydro-cephalous i.e. accumulation of cerebro spinal fluid which means water accumulation in the brain.
(iii) An untreated tumour including Pituitary Tumour or cyst can cause Blindness, Carotid A (stroke), convulsions or paralysis.
We are in agreement with the submission made by lr. advocate for the Appellant that the case in hand under the present dispute is supported by the above passage.
We are therefore of the opinion that some injustice and hardship is caused to the Appellant herein by the impugned order dated 17/10/13 in as much as the Appellants claim in original complaint has not been fully granted and that apart from the amount of Rs. 50,000/- with subsidized interest appearing at direction (3) of the impugned order, the Lr. Forum was not justified in disallowing or ignoring rest of the claim of the Appellant as regards the balance amount of Rs. 1,16,897.50 with due interest. Hence the impugned order dated 17/10/13 passed by the lower Forum deserves to be modified with proper direction. However, we make it clear that there is no need to interfere with the rest of the directions as contained in the impugned order as regards the compensation and costs granted by the Lr. District Forum.
We therefore passed the following order.
ORDER It is hereby ordered that the present appeal stands partly allowed. Accordingly, the direction as contained at No. (3) of the impugned order is hereby modified. We hereby direct the OP No. 2/Respondent to pay to the Appellant the entire amount of Rs. 1,66,897.50 alongwith simple interest at 9% p.a thereon from 1/3/2007 till payment. No order as to costs.
[Shri. Jagdish G. Prabhudessai] [Smt. Vidhya R. Gurav] Member Member