State Consumer Disputes Redressal Commission
Arun Gupta vs Oriental Insu. Co.Ltd. on 2 May, 2016
Daily Order IN THE STATE COMMISSION (Constituted under section 9 of the Consumer Protection Act, 1986) Date of Decision: 02.05.2016 First Appeal-13/2011 In the Matter of: Arun Gupta S/o Shri. S.N. Gupta R/o BN-75, (West) Shalimar Bagh Delhi-110088 ......Appellant Versus 1. The Oriental Insurance Company Ltd. Regd. Office: Oriental House, P.B. No. 7073, A-25/27, Asaf Ali Road, New Delhi - 110002 2. Medsava Health Care Ltd. F-701A, Lado Sarai Behind Golf Course, New Delhi-110030 .......Respondents CORAM (Justice Veena Birbal, President Salma Noor, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
Salma Noor, Member
1. The preset appeal is preferred against order dated 10.12.2012 passed by the Consumer Disputes Redressal Forum, Tis Hazari, Delhi in complaint case no. 466/2010 wherein the complaint of the complainant was dismissed.
2. Brief facts of the case are that the complainant/appellant herein had taken a Mediclaim policy from the respondent for himself, his wife and two children namely Nitish Gupta and Komal Gupta in the year 2005. The said policy was renewed from time to time upto 2009 and the policy was valid from 29.07.2008 to 28.07.2009 for a sum of Rs. 3,00,000/- each for the complainant and his wife and Rs. 2,50,000/- for Nitish and Komal. It was alleged by the appellant that in the month of May 2009 the daughter of the appellant i.e. Ms. Komal got severe pain in her left leg, and the appellant took her to Dr. N.K. Jain, for treatment. CT Scan was conducted at Diwan Chand Satyapal Agarwal Imaging Research Centre, New Delhi where she was diagnosed that she was suffering from Osteoid osteoma in her left leg femur with surrounding sclerosis. On the advice of doctor she was taken to Dr. Bhavin Jhankaria who advised Komal to opt Radio Frequency Abiation (RFA) for treatment. The said procedure was conducted by Dr. Bhavin Jhankaria at Piraman Diagnostics Mumbai, the Nursing Centre of Mumbai. The complainant spent Rs. 1,20,433/- in the treatment of his daughter and filed a claim of reimbursement of the amount before the Insurance Company. The Insurance Company repudiated the claim of the appellant on the ground that the daughter of the appellant was hospitalized for less than 24 Hours. Therefore, the appellant was not entitled for refund.
3. Aggrieved by the repudiation of the respondent the complainant filed a complaint before the District Forum with the following prayers:
"(a) Direct the opposite parties to reimburse the amount of 1,20,433 incurred by the Complainant for the treatment of her daughter.
(b) Direct the opposite party to pay the interest @ 24% per annum for the delayed payment.
(c) Direct the opposite party to pay compensation to the tune of Rs. 1,00000/- for harassment, mental agony suffered by the Complainant due to the deficient service by the opposite parties.
(d) Direct the opposite party to pay litigation charges for a sum of Rs. 50,000/- to the complainant.
(e) pass such other or further orders as this Hon'ble Forum may deem fit and proper in the facts and circumstances of the present case".
4. The District Forum issued notice to the OP. Respondent appeared and filed written statement. The Mediclaim policy was not disputed by the OP and it was also not disputed that the complainant had filed a claim in respect of treatment of his daughter Komal for a sum of Rs. 1,20,433/-. However, the stand taken by the respondent in its written statement was that as per clause 2.2 of the insurance policy if treatment taken in any hospital is for more than 24 Hours only then the claim will be admissible and that since the complainant has taken treatment for less than 24 Hours. Therefore, the claim of the complainant was not admissible. The complainant filed his affidavit reiterating all the facts as alleged in the complaint. OP also filed evidence justifying all the facts as alleged in the written statement.
5. Considering the pleadings of the parties, the District Forum passed the following orders:
"So far as first argument of Ld. counsel of the OP is concerned that if the insured had been taken for less than 24 hours Domicialiary treatment the same is not reimbursable, we are enable to accept this contention. In clause 2.22, if has been specifically provided that expensed of hospitalization are admissible only if hospitalization is for a minimum period of 24 hours except in cases of specialized treatment as detailed here below. At Sl. No. (iii) 'Radiothrapy" has been mentioned as one of the specialized treatment which has been taken by the insured. In the present case, therefore, the claim rejected on the ground of Domiciliary treatment for less then 24 hour is unjustified. However, since the insured had not taken treatment from any Hospital/Nursing Home, the same is not admissible. Complainant is not entitled for any relief. Complaint is accordingly dismissed".
6. Aggrieved by the aforesaid order of the District Forum, the complainant filed the present appeal before this Commission.
7. The only controversy which is to be resolved between the parties is as to whether the claim of the appellant/complainant is admissible under the terms and conditions of the medical insurance policy taken by the complainant.
8. We have carefully gone through the record of the case and heard the submissions of Ld. counsels for the parties. There is no dispute between the parties about the mediclaim policy and also that the daughter of the complainant was suffering from Osteoid osteoma. On the advise of the doctor she was taken to doctor Bhavin Jhankaria who advised doctor of the complainant to opt for Radio Frequency Ablation (RFA) for the treatment and the same procedure was conducted on her at Piramal Diagnostics Mumbai, Nursing Center of Mumbai. The copy of the letter dated 14.05.2009 issued by Dr. Hemant B. Bhandari is annexed as annexure-E along with evidence of the appellant/complainant. It is alleged by the appellant/complainant that he had sent entire treatment details to the opposite party No. 2 (TPA) vide his letter dated 11.05.2009 through fax. The OP-2 advised the complainant to go for the treatment as case of the complainant falls under the specialized treatment and that it will take some time to reimburse the claim. A copy of the letter issued by the complainant to OP-2 was produced as annexure-F along with his complaint. It is stated by the appellant/complainant that after taking treatment of his daughter from Piramal Diagnostics Mumbai, he sent his claim vide letter dated 16.06.2009 to the OP claiming hospital expenses for a sum of Rs. 1,20,443/- from OP-1 i.e. respondent herein along with his claim. The complainant has also annexed bills to substantiate his claim. The bills of the treatment are annexed along with his complaint at page no. 30 to 35.
9. However, the respondent repudiated the claim of the appellant on the ground that since the daughter of the appellant was hospitalized for less than 24 hours. Therefore, the appellant was not entitled for any refund (relying upon clause 1.1.) of the insurance policy. The grievance of the complainant is that his case falls under the clause 2.2 under the exception, as culled under 2.2 of the terms and conditions of the insurance policy:
10. Question arises whether claim would be admissible according to terms and conditions of policy if the duration of hospitalization is less than 24 hours. We have gone through the terms and conditions of the policy. The clause 2.2 of the policy reads as under:
"2.2 Hospitalization period: Expenses on Hospitalization are admissible only if hospitalization if for a minimum period of 24 hours, except in cases of specialized treatment as detailed here below:
i.
ii.
iii. Radiotherapy, iv.
v.
vi.
vii.
viii.
ix.
x.
xi.
xii.
xiii.
xiv.
xv.
xvi.
xvii.
xviii.
xix.
xx.
xxi.
xxi.
xxii.
xxiii.
xxiv.
xxv.
xxvi. Any surgery under General Anaesthesia.
xxvi.
11. In the present case treatment of radiotherapy is taken which is a specialized treatment. Under the aforesaid exception in the policy even if the insured is discharged on the same day the said treatment would be covered. In view of the aforesaid exception in the policy it is clear that duration of hospitalization is immaterial from the bare perusal of the language it is the crystal clear to come to the conclusion that repudiation of the claim of the appellant/complainant was unjustified.
12. Further we have carefully gone through the record and the repudiation letter of respondent-2/OP-2 which reads as under:
"Mr Arun Kumar Gupta BN-75 (West), Shalimar Bagh, Delhi-110 088 Dear Sir, Re: Mediclaim Policy NO. 271700/48/2009/602/A/c Mr Arun Kumar Gupta Patient: Ms Komal Gupta This claim is not admissible and hence repudiated.
Please refer the various consultations of Ms. Komal Gupta, aged 10 years at different clinics and Diagnostic Centres from April 2009 to May 2009 for the complaints of pain left thigh region- three years.
On 25-04-2009 the patient underwent CT Scan Left Hip ast Diwan Chand Satyapal Aggarwal and from the column impression we found that the patient "Findings are consistent with an Osteoid osteoma in the infero medical aspect of the neck- intertrochanteric region of the left femur with surrounding mid sclerosis.
On 27-04-2009 Dr Shekhar Agarwal (Specialist Hip & Knee Replacement Surgeon) also confirmed Osteoid Osteoma left Proxi Femur and advice to plan excision. Dr. Shekhar Agarwal also confirmed that the patient had history of tonsillitis 3 years, pain left Hip/Thigh region with fever on and off.
On 29-04-2009 you consulted Piramal Diagnostics Services and Jankharia Imaging Venture and their clinical findings are A long osteoid osteoma is seen involviong the proximal left femoral shaft. Thereafter, on 11-05-2009 and 12-05-2009 you consulted Dr. Hemant B. Bhandari (Joint replacement, Arthroscopy, Trauma & Orthopaedic Surgeon) and Priamal Diagnostics for the treatment of the same.
Since there was no hospitalization, this claim doesn't fall under the operative clause No. 1.1 of the policy. Under these circumstances, we repudiate this claim section 1.1 of the policy.
Hence under the above circumstances, we are unable to process or settled the claim and hence repudiate the same".
13. A perusal of the above repudiation letter shows that the sole ground taken by the respondent/OP to repudiate the claim of the appellant/complainant is that claim of the complainant is not admissible under condition 1.1 of the policy. Nowhere, in the written statement also, OP has taken any other ground for repudiation of the claim of the appellant/complainant.
14. In our view the claim of the appellant/complainant clearly falls under the exception of terms and conditions 2.2 of the policy where it is clearly mentioned that expenses of hospitalization are admissible even if the hospitalization is less than 24 hours in case of specialized treatment as Radio Therapy any surgery under general Anaesthesia. The treatment of the daughter of the appellant/complainant falls under Radio Therapy and general Anaesthesia which is covered under the exception of condition 2.2 of the policy.
15. A bare perusal of the pleading, evidence and written arguments clearly show that the question which was disputed before the Ld. District Forum was that whether the case of the daughter of the appellant/complainant comes under the purview of specialized treatment or not. However, Ld. District Forum appreciated the facts that the case of the appellant/complainant falls under the exception given in clause 2.2 of the policy but dismissed the complaint of the complainant on the ground that since the insured had not taken treatment from any hospital/nursing home rejected the complaint.
16. In our view, the order of the Ld. District Forum is erroneous on the ground that the Ld. District forum decided the complaint in favour of the respondent/OP on the basis of the unsubstanted averments which was not even the case of the respondent-1 before the Ld. District Forum. The respondent/OP has never taken the plea that daughter of the complainant had not taken treatment from any hospital or nursing home. The only objection of the respondent/OP was that the case of the appellant/complainant is not admissible as the daughter of the complainant had not been admitted in hospital for more than 24 hours for her treatment. In our view the decision of the Ld. District Forum was beyond the pleadings and evidence and the same is unjustified. Therefore, impugned order is required to be set aside.
17. Accordingly, we allow the appeal and set aside the impugned order passed by the Ld. District Forum and consequently allow the Complaint Case No. 466/2010 and direct the respondent/OP i.e. Oriental Insurance Co. to pay an amount of Rs. 1,20,433/- along with interest @ 9% per annum to the appellant/complainant from the date of repudiation of claim till the date of realization. The respondent/OP is also directed to pay an amount of Rs. 15,000/- for mental agony and harassment to the complainant.
18 All aforesaid amounts are directed to be paid within a period of 45 days from the date of receipt of the order.
Copies of the order be furnished to the parties free of costs forthwith.
File be consigned to record room.
(Justice Veena Birbal) President (Salma Noor) Member