Gurmail Kaur widow of Shri Maghar Singh, resident of V.P.O. Mandiani, Tehsil Jagraon, Distt. Ludhiana.

(Complainant)

Vs.



1. Medsave Health Care Limited, FF-701A, Lado Sarai, Opp. Golf Course, New Delhi through its Managing Director.



2. Medsave Health Care, SCO 121-122-123, First Floor, Sector 34-A, Chandigarh through its Manager.



3. The Mandiani Co-Operative Agricultural Service Society Limited, Mandiani, Distt. Ludhiana through its Manager.



4. ICICI Lombard General Insurance Company Limited, Office at 7th Floor, Surya Tower, 108, The Mall, Ludhiana through its Manager.

` (Opposite parties)




O R D E R

1. Sh.Maghar Singh husband of the complainant had account bearing no.494 with Mandiani Co-Operative Agricultural Service Society Limited, Mandiani (OP 3). The said Society-OP No.3 was covered under Sanjivni Health Care Scheme of the Punjab Government and consequently through Med Save Health Care Ltd. ( OP No.1 & 2) members of the Society contributing to the Med Save Health Care Scheme were insured for Rs. 2,00,000/- each. Insurance premium was received by opposite party no.1 & 2 from all the account holders of the society-OP No.3. Through the Society, husband of the complainant under Medi Care Health Scheme was issued card no.860 1100 00 04650A under code no.298-494, showing policy no.4016/0000968 valid from 14.1.2006.


Except this card qua policy, neither cover note nor policy was supplied to husband of the complainant. Sh. Maghar Singh on 6.2.2007 on account of ailment was admitted in Sant Nursing Home Mandi Mullanpur, as his condition was serious, so was taken and admitted to Bassi Hospital where remained as indoor patient upto 23.2.2007. Intimation of admission in Bassi Hospital was given to the opposite party through fax dated 12.2.2007. But they vide letter dated 13.2.2007 sought certain information, which was given to them same day through fax. On account of ailment, Sh.Maghar Singh spent Rs.1,20,000/- on treatment in Bassi Hospital.


Under the insurance scheme expenses of treatment were required to be born by opposite party. But they refused to pay the amount to Bassi Hospital on the ground that intimation qua admission in the hospital was received after 48 hours of admission of the patient in the hospital, whereas no such condition was mentioned in the card issued to Sh.Maghar Singh by the Insurance Company. Nothing qua policy was supplied to him. So, there arises no question of violating terms and conditions of the policy. Subsequently Sh. Maghar Singh was referred to Dayanand Medical College & Hospital, where remained admitted upto 24.2.2007 and on the same day expired in the hospital.


Intimation qua admission in DMC & Hospital was also given to opposite party through their representative working in DMC & Hospital. A sum of Rs.25,000/- was spent on treatment in DMC & Hospital, Ludhiana. Despite repeated requests, opposite party failed to pay the amount of Rs.1,45,000/- spent on the treatment under the Medi Care Insurance Policy. Such act on their part is claimed amounting to deficiency in service, which has also caused mental tension, agony, pain and sufferings to the complainant. Therefore, filed the present complaint under section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite party to pay a sum of Rs.2,00,000/- as compensation, Rs.50,000/- for deficiency in service and Rs.11,000/- as litigation expenses.

2. Opposite party no.3-Co Operative Society in their reply claimed that the complaint against them is misconceived and they can not be held liable for the acts of its members. So, they are not necessary party and also there is no privity of contract between husband of the complainant and the Society. The scheme as claimed was not of the Society, but the scheme was floated by Sanjivni Trust for members of the Society. Under that scheme, all members of the Society were not insured. It was optional for the members of the Society to get insured under the Scheme. They have denied allegations of the complainant and claimed that are not responsible for any deficiency nor any deficiency occurred on their part.

3. Other opposite parties no.1, 2 and 4 did not contest the complaint and were proceeded ex-parte. Defence of opposite party no.4 was struck off for failure to file the written statement and documents despite seeking various adjournments.

4. Complainant and opposite party no.3 led their evidence by way of affidavits and documents in support of their respective contentions and consequently stood heard through their respective learned counsels.

5. Complainant has sworn all allegations of the complaint, by filing affidavit Ex.CW1/A. We have to see at the outset whether her husband was member of the Society-OP3 and being member of the Society obtained medi-claim Insurance coverage, as is pleaded case. Because, opposite party no.3 have not admitted such allegations of the complainant. Rather evidence adduced by opposite party no.3 clearly goes to prove that husband of the complainant was member of the Society and had opted for medi claim insurance, paid premium to the Society, which they had remitted to Sanjivni Trust. Ex. D3 is list of members of the society, who had paid premium for obtaining medi claim insurance coverage.


Name of Sh.Maghar Singh husband of the complainant figures at serial no.5 of that list recording his membership no.494. A sum of Rs.440/- is shown to have been recovered from him by the Society. Society sent premium so collected from members of the Society vide draft, copy of which is Ex.D2, to Sanjivni Trust. Society collected insurance premium from its members, under the scheme, as per decision of the Punjab Govt. conveyed vide letter Ex.D5 dated 21.11.2005. It was under that letter that members of the Society under Sanjivni Trust were offered medicalim insurance. Govt. of Punjab through Co-operative Department publicized the same by issuing pamphlet, copy of which is Ex.D6.

6. It appears that after receipt of the insurance premium, Sanjivni Trust issued Med Save Card Ex.C.26 to Sh. Maghar Singh. That card incorporated condition that person covered under Sanjivni Health Care Scheme would be entitled to cashless hospitalization in network hospitals.

7. The material so brought on record by the complainant leaves us with no doubt that husband of the complainant was covered under Med Save health Care Scheme of Sanjivni Trust, entitling him to cashless treatment in recognized network hospitals.

8. When husband of the complainant was admitted in Bassi Hospital, Ludhiana intimation through fax dated 12.2.2007 was given to Sanjivni Health Care Scheme vide fax, copy of which is Ex.C.2. In response to that fax message Ex.C.2, Med Save Health Care Ltd. (OP No.1 and 2) vide communication Ex.C.4 dated 13.2.2007 conveyed to Bassi Hospital to provide details qua alcoholic history of the patient Sh.Maghar Singh. Probably such information might have been made available by Bassi Hospital to Med Save Health Care who after receipt conveyed regrets to authorize Bassi Hospital cashless treatment of Sh.Maghar Singh. For coming to such conclusion, we are fortified from communication Ex.C.6 dated 13.2.2007 of Med Save Health Care to Bassi Hospital. The reasons expressing inability in letter Ex.C.6 are as under:

“We have been requested for pre-authorization of cashless facility for treatment in your hospital. We issue authorization letter for cashless service in our network hospitals subject to terms and conditions exclusion and limitation of health coverage plan of beneficiary.

We regret to inform you that we are unable to issue you an authorization for cashless treatment of the above said ailment at the requested Hospital/Nursing Home for the following reason/s:

Rejected as PAL received after 48 Hrs. of DOA.”

9. Thus the only reason in letter Ex.C.6 not to provide cashless treatment to Sh. Maghar Singh was that intimation of admission of the patient in the hospital was conveyed after 48 hours from the date of admission.

10. As such, we are required to see whether such rejection of claim by Med Save Health Care was justified or being arbitrary, would amount to deficiency in service on their part?

11. In circumstances of the case, we have no hesitation to arrive at just conclusion that act of Med Save Health Care was not only arbitrary, illegal but also unjustified in circumstances of the case. Because, terms and conditions of the policy were never supplied by the opposite party Med Save Health Care either to the Society or members of the Society covered under the Med Save Health Scheme. Such condition that intimation of taking treatment in recognized hospital was to be given to Med Save Health Care within 48 hours of admission, was not incorporated in card Ex.C.26 issued by Sanjivni Trust in favour of the policy holder Sh. Maghar Singh. When the opposite parties have not conveyed that condition to the policy holder, they can not make him bound with such stipulation.


It is settled law that insured would only be liable within terms and conditions of the insurance policy, if insurer proves supplying terms and conditions of such policy to the insured. In this respect, our view is strengthened by the findings of the Hon’ble Orissa State Commission in case New India Assurance Co. Ltd. & Anr. Vs Patitapaban Karan 2008(1)CLT-177(Orissa State Commission), wherein Their Lordships have held that where insurance company has not adduced any evidence to prove that exclusion clause of policy were brought to notice of complainant, reliance of insurance company on exclusion clause, is of no avail.

12 Same view was held by the Hon’ble U.T. State Commission, Chandigarh in New India Assurance Co. Ltd. Vs Saroj Sian & Anr. 2008 (1) CLT-178 (UT Chandigarh), wherein, it was held that insurance company was liable under the policy, as exclusion clause was not disclosed to the insured and it was not part of the policy.

13. As a result, rejection of the claim on the grounds that intimation was given after 48 hours of admission in Bassi Hospital is arbitrary, illegal, would amount to deficiency in service. If we take this case from other angle, even then in our view Sh. Maghar Singh would have been entitled for amount spent on treatment in the hospital. Because, the main purpose of the policy was to save the members of the Society, who had opted for Med Save Health Scheme, to pay any amount from their own pocket for the purpose of treatment due to any ailment, subject to taking treatment in recognized hospitals of Med Save Health Scheme.


Such beneficial provision was brought to members of the Society who were from weaker section of the Society, so that in case of sudden ailment a poor person may not suffer for want of funds. If for some reason, such insured person could not avail cashless treatment under the medi claim insurance policy, it would not negate his right of re-imbursement. Non providing of cashless treatment to such a person would not convert or make policy to be void or voidable. Policy in all such cases shall remain to be valid and binding between the parties. So, if the case is taken up from that view, complainant still would be entitled for re-imbursement of the amount spent by her husband on his treatment.

13. By not clearing the claim and rejecting it summarily on the grounds that intimation reached Med Save Health Care after 48 hours from the date of admission of Sh. Maghar Singh in the hospital, consequently being deficiency in service must have caused agony, sufferance to the complainant. Therefore, for such deficiency we allow the complaint and consequently pass following orders:

Opposite party no.1 & 2 Med Save Health Care and Insurance Company ICICI Lombard-OP No. 4 who were to implement insurance health scheme of the Med Save Group of Sanjivni Trust, accordingly ordered to settle the entire treatment claim of Sh. Maghar Singh husband of the complainant, within 45 days of receipt of copy of the order and to pay the amount so proved to have been spent by him for his treatment in the recognized hospitals of Med Save health Care. For deficiency in service, they are ordered to pay Rs.5000/-(Rs. Five Thousands only) and litigation cost of Rs.2000/-(Rs. Two Thousands only). Entire order be complied within 45 days of receipt of copy of the order, which be made available to the parties free of costs. File be completed and consigned to record.

Gurmail Kaur widow of Shri Maghar Singh, resident of V.P.O. Mandiani, Tehsil Jagraon, Distt. Ludhiana.

(Complainant)

Vs.



1. Medsave Health Care Limited, FF-701A, Lado Sarai, Opp. Golf Course, New Delhi through its Managing Director.



2. Medsave Health Care, SCO 121-122-123, First Floor, Sector 34-A, Chandigarh through its Manager.



3. The Mandiani Co-Operative Agricultural Service Society Limited, Mandiani, Distt. Ludhiana through its Manager.



4. ICICI Lombard General Insurance Company Limited, Office at 7th Floor, Surya Tower, 108, The Mall, Ludhiana through its Manager.

` (Opposite parties)








O R D E R



1. Sh.Maghar Singh husband of the complainant had account bearing no.494 with Mandiani Co-Operative Agricultural Service Society Limited, Mandiani (OP 3). The said Society-OP No.3 was covered under Sanjivni Health Care Scheme of the Punjab Government and consequently through Med Save Health Care Ltd. ( OP No.1 & 2) members of the Society contributing to the Med Save Health Care Scheme were insured for Rs. 2,00,000/- each. Insurance premium was received by opposite party no.1 & 2 from all the account holders of the society-OP No.3. Through the Society, husband of the complainant under Medi Care Health Scheme was issued card no.860 1100 00 04650A under code no.298-494, showing policy no.4016/0000968 valid from 14.1.2006. Except this card qua policy, neither cover note nor policy was supplied to husband of the complainant.


Sh. Maghar Singh on 6.2.2007 on account of ailment was admitted in Sant Nursing Home Mandi Mullanpur, as his condition was serious, so was taken and admitted to Bassi Hospital where remained as indoor patient upto 23.2.2007. Intimation of admission in Bassi Hospital was given to the opposite party through fax dated 12.2.2007. But they vide letter dated 13.2.2007 sought certain information, which was given to them same day through fax. On account of ailment, Sh.Maghar Singh spent Rs.1,20,000/- on treatment in Bassi Hospital. Under the insurance scheme expenses of treatment were required to be born by opposite party.


But they refused to pay the amount to Bassi Hospital on the ground that intimation qua admission in the hospital was received after 48 hours of admission of the patient in the hospital, whereas no such condition was mentioned in the card issued to Sh.Maghar Singh by the Insurance Company. Nothing qua policy was supplied to him. So, there arises no question of violating terms and conditions of the policy. Subsequently Sh. Maghar Singh was referred to Dayanand Medical College & Hospital, where remained admitted upto 24.2.2007 and on the same day expired in the hospital. Intimation qua admission in DMC & Hospital was also given to opposite party through their representative working in DMC & Hospital.


A sum of Rs.25,000/- was spent on treatment in DMC & Hospital, Ludhiana. Despite repeated requests, opposite party failed to pay the amount of Rs.1,45,000/- spent on the treatment under the Medi Care Insurance Policy. Such act on their part is claimed amounting to deficiency in service, which has also caused mental tension, agony, pain and sufferings to the complainant. Therefore, filed the present complaint under section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite party to pay a sum of Rs.2,00,000/- as compensation, Rs.50,000/- for deficiency in service and Rs.11,000/- as litigation expenses.

2. Opposite party no.3-Co Operative Society in their reply claimed that the complaint against them is misconceived and they can not be held liable for the acts of its members. So, they are not necessary party and also there is no privity of contract between husband of the complainant and the Society. The scheme as claimed was not of the Society, but the scheme was floated by Sanjivni Trust for members of the Society. Under that scheme, all members of the Society were not insured. It was optional for the members of the Society to get insured under the Scheme. They have denied allegations of the complainant and claimed that are not responsible for any deficiency nor any deficiency occurred on their part.

3. Other opposite parties no.1, 2 and 4 did not contest the complaint and were proceeded ex-parte. Defence of opposite party no.4 was struck off for failure to file the written statement and documents despite seeking various adjournments.

4. Complainant and opposite party no.3 led their evidence by way of affidavits and documents in support of their respective contentions and consequently stood heard through their respective learned counsels.

5. Complainant has sworn all allegations of the complaint, by filing affidavit Ex.CW1/A. We have to see at the outset whether her husband was member of the Society-OP3 and being member of the Society obtained medi-claim Insurance coverage, as is pleaded case. Because, opposite party no.3 have not admitted such allegations of the complainant. Rather evidence adduced by opposite party no.3 clearly goes to prove that husband of the complainant was member of the Society and had opted for medi claim insurance, paid premium to the Society, which they had remitted to Sanjivni Trust. Ex. D3 is list of members of the society, who had paid premium for obtaining medi claim insurance coverage.


Name of Sh.Maghar Singh husband of the complainant figures at serial no.5 of that list recording his membership no.494. A sum of Rs.440/- is shown to have been recovered from him by the Society. Society sent premium so collected from members of the Society vide draft, copy of which is Ex.D2, to Sanjivni Trust. Society collected insurance premium from its members, under the scheme, as per decision of the Punjab Govt. conveyed vide letter Ex.D5 dated 21.11.2005. It was under that letter that members of the Society under Sanjivni Trust were offered medicalim insurance. Govt. of Punjab through Co-operative Department publicized the same by issuing pamphlet, copy of which is Ex.D6.

6. It appears that after receipt of the insurance premium, Sanjivni Trust issued Med Save Card Ex.C.26 to Sh. Maghar Singh. That card incorporated condition that person covered under Sanjivni Health Care Scheme would be entitled to cashless hospitalization in network hospitals.

7. The material so brought on record by the complainant leaves us with no doubt that husband of the complainant was covered under Med Save health Care Scheme of Sanjivni Trust, entitling him to cashless treatment in recognized network hospitals.

8. When husband of the complainant was admitted in Bassi Hospital, Ludhiana intimation through fax dated 12.2.2007 was given to Sanjivni Health Care Scheme vide fax, copy of which is Ex.C.2. In response to that fax message Ex.C.2, Med Save Health Care Ltd. (OP No.1 and 2) vide communication Ex.C.4 dated 13.2.2007 conveyed to Bassi Hospital to provide details qua alcoholic history of the patient Sh.Maghar Singh. Probably such information might have been made available by Bassi Hospital to Med Save Health Care who after receipt conveyed regrets to authorize Bassi Hospital cashless treatment of Sh.Maghar Singh. For coming to such conclusion, we are fortified from communication Ex.C.6 dated 13.2.2007 of Med Save Health Care to Bassi Hospital. The reasons expressing inability in letter Ex.C.6 are as under:

“We have been requested for pre-authorization of cashless facility for treatment in your hospital. We issue authorization letter for cashless service in our network hospitals subject to terms and conditions exclusion and limitation of health coverage plan of beneficiary.

We regret to inform you that we are unable to issue you an authorization for cashless treatment of the above said ailment at the requested Hospital/Nursing Home for the following reason/s:

Rejected as PAL received after 48 Hrs. of DOA.”

9. Thus the only reason in letter Ex.C.6 not to provide cashless treatment to Sh. Maghar Singh was that intimation of admission of the patient in the hospital was conveyed after 48 hours from the date of admission.

10. As such, we are required to see whether such rejection of claim by Med Save Health Care was justified or being arbitrary, would amount to deficiency in service on their part?

11. In circumstances of the case, we have no hesitation to arrive at just conclusion that act of Med Save Health Care was not only arbitrary, illegal but also unjustified in circumstances of the case. Because, terms and conditions of the policy were never supplied by the opposite party Med Save Health Care either to the Society or members of the Society covered under the Med Save Health Scheme. Such condition that intimation of taking treatment in recognized hospital was to be given to Med Save Health Care within 48 hours of admission, was not incorporated in card Ex.C.26 issued by Sanjivni Trust in favour of the policy holder Sh. Maghar Singh. When the opposite parties have not conveyed that condition to the policy holder, they can not make him bound with such stipulation.


It is settled law that insured would only be liable within terms and conditions of the insurance policy, if insurer proves supplying terms and conditions of such policy to the insured. In this respect, our view is strengthened by the findings of the Hon’ble Orissa State Commission in case New India Assurance Co. Ltd. & Anr. Vs Patitapaban Karan 2008(1)CLT-177(Orissa State Commission), wherein Their Lordships have held that where insurance company has not adduced any evidence to prove that exclusion clause of policy were brought to notice of complainant, reliance of insurance company on exclusion clause, is of no avail.

12 Same view was held by the Hon’ble U.T. State Commission, Chandigarh in New India Assurance Co. Ltd. Vs Saroj Sian & Anr. 2008 (1) CLT-178 (UT Chandigarh), wherein, it was held that insurance company was liable under the policy, as exclusion clause was not disclosed to the insured and it was not part of the policy.

13. As a result, rejection of the claim on the grounds that intimation was given after 48 hours of admission in Bassi Hospital is arbitrary, illegal, would amount to deficiency in service. If we take this case from other angle, even then in our view Sh. Maghar Singh would have been entitled for amount spent on treatment in the hospital. Because, the main purpose of the policy was to save the members of the Society, who had opted for Med Save Health Scheme, to pay any amount from their own pocket for the purpose of treatment due to any ailment, subject to taking treatment in recognized hospitals of Med Save Health Scheme.


Such beneficial provision was brought to members of the Society who were from weaker section of the Society, so that in case of sudden ailment a poor person may not suffer for want of funds. If for some reason, such insured person could not avail cashless treatment under the medi claim insurance policy, it would not negate his right of re-imbursement. Non providing of cashless treatment to such a person would not convert or make policy to be void or voidable. Policy in all such cases shall remain to be valid and binding between the parties. So, if the case is taken up from that view, complainant still would be entitled for re-imbursement of the amount spent by her husband on his treatment.

13. By not clearing the claim and rejecting it summarily on the grounds that intimation reached Med Save Health Care after 48 hours from the date of admission of Sh. Maghar Singh in the hospital, consequently being deficiency in service must have caused agony, sufferance to the complainant.