| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 218 of 21-08-2018 Decided on : 22-04-2022 Akhil Garg S/o Sh. Krishan Kumar Garg R/o #6, Ganpati Enclave, Bathinda. ........Complainant
Versus HDFC ERGO GENERAL Insurance Company Limited, 101, First Floor, Inizo Cardinal Gracious Road, Chakala, Opposite P & G Plaza, Andheri (East) Mumbai City Maharashtra India (400069) through its Managing Director. HDFC ERGO GENERAL Insurance Company Ltd., Mall Road, Malviya Nagar, Bathinda, Punjab, through its Authorized Signatory/Branch Manager Shiv Budhiraja (Agent of Apollo Munich Health Insurance) R/o 32/70, Street No. 11, Bhikam Singh Colony, Vishwas Nagar, Sahadra Delhi 110 032. .......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member Smt. Paramjeet Kaur, Member Present For the complainant : Sh. Rohit Goyal, Advocate. For opposite parties : Sh. Varun Gupta, Advocate, for OPs No. 1 & 2. OP No. 3 exparte ORDER Kanwar Sandeep Singh, President The complainant Akhil Garg (here-in-after referred to as complainant) has filed this complaint U/s 35 of Consumer Protection Act, 2019 (here-in after referred to as 'Act') before this Commission against HDFC ERGO Gneral Insurance Co. Ltd., & others (here-in-after referred to as opposite parties). Briefly stated the case of the complainant is that opposite party No. 3 personally approached complainant at Bathinda and allured him to purchase insurance policy of opposite party No.1 alleging that product of same company being best in India and in case of requirement such insured can avail cashless medical treatment and all statutory benefits of policy, without wastage of any time and such claims are processed immediately without any delay and without any hustle, as opposite parties No. 1 &2 are service Oriented Company. Accordingly, complainant purchased Insurance Policy No.110106/11119/AA00158646 and Member ID No.10007810169 for a sum of Rs.5,00,000/- against premium of Rs.7,297.78, through opposite party No.3 in the year 2014 which was valid for the period 28.11.2014 to 27.11.2015 and thereafter, complainant has been paying the premium continuously and insurance is being continued till date, without any gap of payment of premium amount. It is alleged that in December 2017 complainant got severe pain, swelling and bogginess in B/E lower lids and as such he approached specialist Dr. Raman Mittal of Brar Eye Hospital Pvt. Ltd., Faridkot Road, Kotakpura, who after thorough checking told complainant that he should get immediate treatment and undergo procedural operation for removal/drainage of pus and infected fat excision, under anesthesia which can further cause him problems in the future due to swollen fat. Accordingly, on 20.12.2017, the complainant, under doctor's advice, to get relief from pains and eye problem, went to above said eye hospital and got admitted himself as indoor patient for treatment. He was medically operated at Brar Eye Hospital Pvt. Ltd. and necessary required treatment was done. I.V. antibiotics and drainage of pus and infected fat was done, by said doctor under anesthesia, which could have been done only as indoor patient. After said treatment and procedure of operation, the complainant remained under direct supervision and observation of said doctor. The complainant alleged that he spent total Rs. 61,014/- on his treatment ( Rs.60,000/- paid to doctor vide receipt dated 20.12.2017 + Rs. Rs.814/- on medicines vide invoice dated 20.12.017 + Pre-hospitalization expenses Rs.200/-. The complainant further alleged that the said surgery procedure was necessary for therapeutic reasons and to avoid future complications. The complainant was duly insured with opposite party No.1 for the period in which he got himself operated for medical problem faced by him, as such he was legally entitled to the reimbursement for the expenditure incurred on his treatment. As per terms and conditions disclosed by opposite parties to complainant at the time of effecting insurance, that he was entitled even for cashless treatment. The complainant informed opposite party No. 3 about the said problem and he assured the complainant that he should get treatment from renowned hospital and opposite party No.1 will make payment directly to the said doctor, but opposite party No.1 did not pay even single penny to said doctor or to complainant, despite repeated requests of complainant. The complainant submitted all the required and demanded documents and also original medical record of treatment with the opposite parties.The claim form and other forms were also got signed from the complainant by the opposite parties with an understanding that his claim is genuine and he would soon be reimbursed. It is alleged that the opposite parties illegally, against facts, arbitrarily, with malafide intention to get wrongful benefit and to cause wrongful loss to complainant, vide their e-mails dated 05.01.2018 and 15.02.2018 intimated the complainant that his claim was not payable on the ground that aforesaid claim submitted for management of ailment by the complainant, falls under the category of cosmetic/plastic surgery and that the same was excluded in policy. The complainant alleged that till date no terms and conditions of Insurance Policy have been supplied to the complainant, despite being repeatedly asked by complainant from opposite party No. 3. After receipt of e-mails, complainant approached opposite party No. 3 and as per his advice, furnished a certificate from Brar Eye Hospital Pvt. Ltd. Kotkapura dated 17.01.2018 to the effect that said surgery was not cosmetic surgery, rather same was required for therapeutic reasons and to avoid future possible problem due to swollen fat. Thereafter, opposite parties assured the complainant, that his claim will be settled and all the expenses will be reimbursed. The complainant alleged that opposite party No. 3 obtained signatures of complainant on an application dated 14.02.2018 for re-opening of case, but opposite parties No.1 & 2 without assigning any legal, valid, medical or proper reason, again sent e-mail dated 15.02.2018 to complainant, which was virtually copy of earlier e-mail dated 05.01.2018 and no new ground or reason was mentioned therein. Hence opposite parties have rejected the claim of complainant illegally, against facts, arbitrarily, fraudulently, with an ulterior motive to save their skin from their lawful liability of claim amount. The complainant further alleged that thereafter opposite party No. 3 again got signed a representation from complainant at Bathinda, on the assurance that he would get paid the claim to complainant by all means and submitted said representation to opposite parties No. 1 & 2 alongwith fresh certificate dated 27.03.2018 of Brar Eye Hospital Pvt. Ltd. Kotkapura, wherein it was mentioned that "This to certify that Mr. Akhil Garg S/o Sh. Krishan Garg R/o 6, Ganpati Enclave, Bathinda came with sudden onset bilateral swelling of eyelids, which were tense, swollen and erythematous in nature. He was given IV antibiotics and was advised for drainage of pus and infected fact excision under anesthesia. Following this, he was kept under observation for one day to see for improvements. As far as surgery is concerned, it was not a cosmetic surgery at all. This surgery was not possible on outpatient basis. Kindly process the claim as soon as possible and do the needful." It is further alleged that even thereafter complainant received letter dated 24.04.2018, vide which he was informed that his claim was rejected alleging that management' of ailment could have been done as outpatient basis, without hospitalization. In said repudiation letter, another reason has been added at second point but there was no such reason ever recorded in the prior emails under which the repudiation was done. Hence the opposite parties No..1 & 2 were not interested to pay the true claim of the complainant rather were finding one reason or the other to repudiate his genuine claim. The rejection of claim of complainant by the opposite parties is purely against principle of natural justice. The said rejection of claim of complainant, has caused him great mental pain, agony, harassment, tension, botheration and harassment, for which he claims compensation to the tune of Rs.50,000/-. The complainant also claims that opposite parties are further liable to pay a sum of Rs.25,000/- on account of legal fee born by the complainant for filing this complaint. Complainant visited the doctor at Kotkapura several times to get the said certificate issued and had to spent money from his pocket for traveling and had to suffer loss in business too and, for which complainant also claims Rs.15,000/-. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay Rs. 61,014/- being treatment expenses; Rs. 50,000/- compensation; Rs. 15,000/- loss of business and travelling; Rs. 25,000/- legal expenses and interest @18% p.a. on above said amounts in addition to any other additional or alternate relief. Registered A.D. Notice of complaint was sent to the opposite parties. None appeared on behalf of opposite party No. 3. As such, exparte proceedings were taken against opposite party No. 3. Opposite parties No. 1 & 2 put an appearance through counsel and contested the complaint by filing joint written reply raising preliminary objections that the complaint filed by complainant is not maintainable as the complainant has attempted to misguide and mislead this Commission and complaint involves disputed question of facts which cannot be determined in summary jurisdiction of this Commission. That the complainant has filed this complaint with mala-fide intention and has not come before this Commission with clean hand. That prima facie no cause of action has arisen in favor of the complainant. That the complaint is false, frivolous and vexatious in nature and that the complainant is estopped from filing the present complaint by his own acts, conduct, omissions and acquiescence. Thereafter opposite parties have pleaded brief facts of the case as under : That believing the information and details provided by the Proposer including the medical history in the proposal form, to be true and correct in all respects and giving due credence to the under writing norms of opposite parties No.1 & 2, a Policy No.110106/11119/AA00158646 was issued for sum assured of Rs.5,00,000/- opted as per proposal form to the Proposer on 21.11.2014 for the period between 28.11.2014 to 27.11.2015 and thereafter complainant regularly opted to purchase the said policy and paid the renewal premium till November 2018 (Ordinary) rates premium. The copy of Schedule bearing relevant details of the Policy along with policy bond having terms and conditions were duly sent and delivered to the Proposer. Further, no assurance was given to the complainant beyond the terms and conditions of the Policy. Policy kit containing all relevant documents was duly delivered to the complainant, thereby giving an opportunity to the complainant to verify and examine the benefits, terms and conditions of the policy taken by the complainant. The complainant never approached the opposite parties stating that any information given in the Policy Schedule was incorrect. It has been pleaded that alleged claim under the policy received from the complainant for reimbursement on 03.01.2018 of Member Akhil Garg (age- 30 Years) admitted in Brar Eye Hospital Pvt Ltd, Kotkapura, Punjab for Lower Lid bags of Fat underwent Lower Lid fat Excision (blepharoplasty) with DOA 20 Dec 2017 & DOD 21 Dec 2017 with final claimed amount Rs. 61014/-. On post scrutiny of the documents, it was observed that patient was admitted for removing fat deposition in his lower eyelid to enhance his appearance. The case of the complainant was rejected on 6-1-2018 stating that the submitted claim is for management of ailment, which falls under category of cosmetic/plastic surgery. Any kind of cosmetic /plastic surgery is excluded in the policy and claim of the complainant has been repudiated by the opposite parties under Sec-V xi a of policy. The opposite parties have pleaded that there is typographical error in mentioning the section number of the condition under which claim has been rejected. The condition exists in policy wordings and correct section is Section V C vii a. It has been further pleaded that TDC was received against rejection, but that was not considered and case was again rejected by adding one more ground that procedure could have been managed on OPD basis. The TDC states that treatment was done to remove excess B/E fat, which as per medical terminology is done to improve the appearance of the face. The other line of the certificate states that it was done for therapeutic reasons to avoid future problems, which clearly means that, at the current stage complainant have not sustained or faced any problem. Blepharoplasty is usually done in an outpatient setting. Your surgeon numbing medication into your eyelids and administers intravenous medication to help you relax. The submitted claim was for management of ailment, which falls under category of cosmetic /plastic surgery. Any kind of cosmetic /plastic surgery is excluded in the policy, hence has been repudiated under Sec-V C xi a of policy. The submitted claim is for management of an ailment where the hospitalization is not justified and could have been done on an outpatient basis without any Hospitalization. Hence claim was repudiated under section V C xii b of policy terms and conditions. The opposite parties have further pleaded that on second rejection with additional rejection ground, member submitted another Doctor's certificate for reconsideration that procedure could not have been managed on OPD basis but request was considered and case was again rejected on dated 24th April, 2018 on above mentioned reasons. The second doctor's certificate was manipulative on the "infected fat excision" & "Pus removal" part of the treatment. The second doctor's certificate cannot be considered by the opposite parties and opposite parties requested this Commission to not to consider the same as well because the certificate has not been provided by the Treating doctor. The doctor on rejection manipulated the surgery detail by adding that pus was also excised but in D/S (surgerical history column) no such detail was available. It has also been pleaded that case was also investigated and it was found that member underwent only for fat excision not for pus drainage as stated in notice. So, on reviewing investigator report, case was again rejected on 27-7-2018. On merits, it has been admitted that the complainant purchased a health insurance policy from the opposite parties and the benefits thereof are supposed to be covered as per the terms & conditions of the same. It has been pleaded that complainant after duly understood and satisfied with the features and the policy terms & conditions of the policy, had availed a Health Insurance Policy of the opposite parties with sum assured of Rs.5,00,000/- covering himself. The complainant got the entire information regarding all the plans of the opposite parties and thereafter, after understanding all the terms and conditions of all the plans, he opted to purchase Optima Restore Policy. After receiving the Proposal Form and going through the entire contents of the Proposal Form, the underwriters of the policy, had issued the Insurance Policy to the complainant and sent the policy documents along with all terms and conditions of the policy to the complainant on the given address and the same was received by the complainant and the same are in his possession and moreover the complainant relied upon the same. The policy terms and conditions were also sent along the policy documents in which the actual benefit of the policy has been explained in detail. The oposite parties No. 1 & 2 have also pleaded that it is nowhere mentioned in the discharge summary that complainant has undergone treatment for removal of Pus and infected fat excision, there is only mentioned that "lower lid fat excision". There is no such word "Pus removal". or "infected fat" is used. The same is used post rejection of the complainant's claim to purely gain the undue advantage of getting indemnified. The medical documents of the complainant does not show that treatment has been taken for drainage of Pus & infected fat excision, and the doctor is not the treating doctor, as the certificate is provided by Dr. P S Brar whereas treating doctor as per the Discharge summary is Dr. Raman Mittal, and hence it is proved that complainant is trying to manipulate the facts of the case for his vested interests. As per medical literature also, treatment undertaken by the complainant is cosmetic in nature as per the medical documents provided by him which excludes the Doctor's certificate as the same are manipulative in nature and lacks the factual basis of the claim. In further reply, the opposite parties No. 1 & 2 reiterated their version as pleaded in brief facts and detailed above. After controverting all other averments of the complainant, the opposite parties No. 1 & 2 prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence photocopy of policy schedule (Ex. C-1), photocopy of renewed Insurance policy (Ex. C-2), photocopy of policy schedule (Ex. C-3), photocopy of discharge summary (Ex. C-4), photocopy of certificate (Ex. C-5), photocopy of bill (Ex. C-6), photocopy of prescription (Ex. C-7), photocopy of bill (Ex. C-8 & Ex. C-9 ), photocopy of post operation instructions (Ex. C-10), photocopy of report dated 6-12-2017 (Ex. C-11), photocopy of claim form (Ex. C-12), photocopy of e-mail (Ex. C-13), photocopy of certificate (Ex. C-14), photocopy of e-mail (Ex. C-15), photocopy of re-opening request (Ex. C-16), photocopy of certificate (Ex. C-17), photocopy of e-mail (Ex. C-18), rejection letter (Ex. C-19), photocopy of legal notice & postal receipts (Ex. C-20 to Ex. C-22), photocopy of adhar card (Ex. C-23) and affidavit dated 17-8-18 of complainant (Ex. C-24). In order to rebut the evidence of complainant, opposite parties No. 1 & 2 tendered into evidence photocopy of proposal form (Ex. OP-1/1), photocopy of insurance policy (Ex. OP-1/2), photocopy of claim form (Ex. OP-1/3). Photocopy of rejection letters (Ex, OP-1/4 to Ex. OP-1/5), photocopy of Investigation report (Ex. OP-1/6), affidavit dated 10-10-2018 of Deepak Rastogi (Ex. OP-1/7), photocopy of opinion (Ex. OP-1/8) and photocopy of of affidavit of Dr. C S Asrani (Ex. OP-1/9). The learned counsel for complainant and opposite parties No. 1 & 2 reiterated their stand as taken in their respective pleadings. We have heard learned counsel for the parties and gone through the record. In the case in hand, the complainent alleged that he suffered from seveare pain, swelling and bogginess in B/E lower lids, so he got himself operated at Brar Eye Hospital Kotkapura and submitted his claim with the opposite parties. The opposite parties rejected his claim on the ground that operation performed upon him is a cosmetic/plastic surgery which does not fall under the policy condition. Moreover, sugery got conducted by complainant does not require hospitalization. The submission of learned counsel for the complainent is that opposite parties illlegally rejected the claim of the complainent despite the fact that complainant submitted certificate issued by the hospital to the effect that this surgery was required for theraputic reasons and to avoid further possible problems and surgery performed is not a cosmetic/plastic surgery. The complainant also submitted certificate issued by said hospital to the effect that this surgery was not possible on outpatient basis. The opposite parties have repudiated the claim of the complainant vide email dated 05.01.2018 (Ex.C-13) on the ground that submitted claim is for management of ailment which falls under category of cosmetic/plastic surgery. Any kind of cosmetic/plastic surgery is excluded in the policy. The complainant submitted certificate dated 14-1-2018 issued by Brar Eye Hospital Pvt. Ltd., Kotkapura (Ex.C-5) to the effect that surgery was required for therapeutic reasons and to avoid the future possible problems due to swollen fat. It has been specifically mentioned in the certificate that this surgery is not a cosmetic/ plastic one. Ex. C-5 is the certificate, as detailed above, issued by Dr. Raman Mittal, the treating doctor. This certificate reads as under :- This is to certify that Mr. Akhil Garg S/o Mr. Krishan Garg, Bathinda, presented to this hospital with complaints of swelling and bogginess in B/L lower lids which was more severe on early morning. He was diagnosed to have lower lid bags of fat with loose septae. He was suggested for B/E Fat excision which was done on 2-12-2017. This is to further state that this surgery was not done for cosmetic.. but was required for therapeutic reasons and to avoid the future possible problem due to swellen fat. Thereafter opposite parties vide letter dated 24.04.18 (Ex.C-19) again rejected the claim of the complainent by mentioning two reasons. First reason was the same as mentioned in letter Ex.C-13 and added on more reason/ground that management of an ailment of the compainent not required hospitalization and it could have been done on an outpatient basis. Thereafter, complainent also submitted another certificate dated 27.03.2018 (Ex.C-17) issued by Brar Eye Hospital Pvt. Limited, Kotkapura, which reads as under : “This is to certify that Mr. Akhil Garg S/o Sh. Krishan Garg R/o Ganpati Enclave, Bathinda came with sudden onset bilateral swelling of eyelids, which were tense, swollen and erytheematous in nature. He was given iv antibiotics and was advised for drainage of pus and infected fact excision under anaesthesia. Following this, he was under observation for one day to see for imporvement. As far as surgery is concerned, it was not a cosmetic surgery at all. This surgery was not possible on outpatient basis.” The certificate Ex. C-17 has been issued by Brar Eye Hospital Pvt. Ltd. Kotkapura, wherein surgery of complainant was performed. The objection raised by the opposite parties that this certificate Ex. C-17 has been issued by Dr. B S Brar, whereas surgery of complainant was performed by Dr. Raman Mittal, is of no value as the opposite parties without any basis kept on raising objections one after another, only to reject the genuine claim of the complainant. Despite the fact that complainant submitted certificate (Ex. C-5) issued by Brar Eye Hospital Pvt. Ltd., signed by Dr. Raman Mittal, wherein it was certified that surgery performed upon the complainant is not a cosmetic/plastic surgery, in repudiation letter dated 24-4-2018 (Ex. C-19), opposite parties again taken the same ground for rejection regarding plastic/cosmetic surgery. The opposite parties have placed on file Reimbursement Insurance Claim Verification Report (Ex. OP-1/6). In the said Investigation report of JD Health Care Service, Mohali, it has been mentioned that : Visit to the patient done and the questionairre collected and the following findings noted - As per patient, he has been suffering from puffiness and pain of lower eyelids from October, 2017. It has been also mentioned in this document : Visit to the Hospital done, ICP collected and the following findings noted : - As per ICP (25-7-2017), the patient presented to the Hospital for complaints of swelling in Left Eye Lid. He came in for Chalazion removal and blurriness associated with pain B/E. - As per ICP (20-12-2017), the patient was admitted for Right Lower Lid Fat Excision (B/E Lower Lid Bags Fat) and underwent Lower Lid Fat excision on 20-12-2018 both eyes. - As per ICP the patient was discharged on 21-12-2018 - As per ICP (25-7-17), the patient has a history of Chalazion surgery in R.E. A year ago. Under the column of Observations – it has been mentioned that : The patient a 30 year old male presented to the Hospital for complications of B/E swelling and pain from the last 2 months. He first consulted Brar Eye Hospital for the same. - On the 20th December, 2017 the patient underwent Blehpheroplasty under LA for Lower Lid B/E. He was discharged on 21st December, 2018 in stable condition. Thus, above Invesigation Report proves that complainant approached the hosptal for complication of B/E swelling and pain from the last 2 months. He was admitted on 20-12-2017 and was discharged on 21-12-2017. Since the complainant was suffering from pain due to swollen fat as proved by the document submitted by the opposite parties themselves, the complainant got performed surgery to get relief from pain meaning thereby in such circumstances, it cannot be said that it was a cosmetic/plastic surgery. The complainant has placed on file discharge summary (Ex. C-4) which also reveals date of admission as 20-12-2017 and date of discharge as 21-12-2017. As per certificate (Ex. C-17) issued by Brar Hospital Pvt. Ltd., where the surgery of complainant was performed, the complainant visited the hospital with sudden onset bilateral swelling of eyelids which were tense swollen and erythematous in nature. He was given iv antibiotics and was advised for drainage of pus and infected fat excision under anaesthesia. Hence, the above discussed evidence placed on file proved that surgery performed upon complainant was not a cosmetic/plastic surgery and it was required for therapeutic reasons to avoid the future possible problem. It is also proved on file that this surgery was not possible on outpatient basis. The complainant got insurance since from the year 2014 and admittedly without any break he got it renewed but when he filed claim, opposite parties kept on searching for flimsly grounds to reject his genuine claim. Hon'ble Punjab & Haryana High Court in the case titled New India assurance Co. Ltd., Vs. Usha Yadav 2008(3) RCR Civil 111 has observed that : “Cash rich Insurance Company indulging in luxury litigation to repudiate claim of the insured – It seems that the Insurance companies are only interested in earning the premiums and find ways and means to decline the claim, Thus, there is deficiency in service on the part of the opposite parties No. 1 & 2 in rejecting the genuine claim of the complainant without any basis and the complainant is entitled to the insurance claim. In the result, this complaint is partly allowed with Rs. 5,000/- as cost and compensation against opposite parties No. 1 & 2 and stands dismissed qua opposite party No. 3. The opposite parties No. 1 & 2 are directed to pay to complainant claim amount of Rs. 61,014/- with interest @9% p.a. w.e.f. 6-1-2018 (date of first rejection) till payment. The compliance of this order be made by opposite parties No. 1 & 2 within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to covid pandemic and heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced : 22-4-2022 (Kanwar Sandeep Singh) President (Shivdev Singh) Member (Paramjeet Kaur)
Member
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