Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.319 /06.09.2016
Rakesh r/o-242 Burari Near Takia Chowk,
New Delhi-110085 ...Complainant
Versus
OP. Cholamandalam MS . General Insurance Co. Ltd.,
Plot no.6, Ist floor, Metro Pillar No. 81, Main Pusa Road,
Karol Bagh, New Delhi-110005. ...Opposite Party
Date of filing 06.09.2016
Date of Order: 28.07.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Inder Jeet Singh, President
ORDER
1.1. (Introduction to case of parties) - The complaint is filed by insured/complainant against insurer/OP alleging intentional, willful and deliberate negligence and deficiency of services for want of providing cashless facility and later-on declining reimbursement of medical bills claims [in respect of hospitalisation and treatment of complainant under Group Health Master] on flimsy ground that treatment was taken from de-listed Guru Gobind Singh Hospital. Whereas many more insured, who had treatment from the same Hospital during that tenure/year, were reimbursed their medical bills. The complainant seeks reimbursement of medical bills of Rs.48,248/- along-with interest of 15%pa, compensation of Rs.50,000/, apart from litigation costs and other appropriate relief under the circumstances,
1.2. The OP opposes the complainant by denying allegations of intentional, willful and deliberate negligence and deficiency of services. The claim was rightly repudiated by letter dated 19.1.2019, since the complainant had undertaken treatment from the delisted/de-paneled hospital. In the reply to complaint, it is also justified that claim was not maintainable as complainant's stay in the hospital was prolonged and beyond requirement, besides 50% of bills stands on medicine and investigation, which cannot be construed active treatment. So far other insurers are concerned, their treatment in the said Hospital and their medical bills were found expedient, that is why the same were reimbursed, It cannot be construed deficiency of services and complainant is not entitled for any claim/relief.
2.1. (Case of complainant) – The complainant took Group Health Master policy, Plan- Family Health Silver (hereinafter referred insurance policy) from OP through Indusind Bank Ltd., Gujrawala Town, Delhi. Initially, the policy issued was bearing no. 2842/00106239/000/00 w.e.f. 30.08.2014 to 29.08.2015 for sum insured Rs. 2,00,000/-, it was covering the complainant, his spouse and their two children. The said policy was renewed vide master policy no. 2842/00120390/001/00 w.e.f 11.09.2015 to 10.09.2016 for all family members and it was a floater sum insured of Rs. 4,00,000/-.
2.2. In November, 2015 the complainant fell ill. On 20.11.2015 he was admitted in Guru Govind Singh Hospital, Burari Delhi, where he was treated as indoor patient and he was discharged on 26.11.2015. He had informed the OP about his admission and treatment but no cashless facility was provided to him.
The complainant lodged claim with all documents of his treatment, the claim was for reimbursement of medical bills of Rs. 48,248/-. However, the OP repudiated the claim by letter dated 19.01.2016 on the ground that he had undergone treatment at Guru Govind Singh Hospital, which is delisted hospital by the OP. Whereas, the ground of repudiation is false, frivolous and it was issued to decline the valid claim. The paragraph 9 of complaint enumerates names of three insured/patients, who had been admitted in Guru Govind Singh Hospital in April 2015, January 2016 and March 2016 and were discharged correspondingly in those months. Their claims were also settled for them and in one of the case of patient Jitender Rawat, an amount of Rs. 19,807/- was credited in his account with HDFC Bank on 15.04.2016 by the OP as reimbursement of the claim.
2.3. The acts and conduct of OP amounts to intentional, willful, deliberate negligence, serious deficiency of services and complainant is entitled for reimbursement of medical bills, damages and compensation as OP failed to honour the valid claim. That is why, the complaint under the Consumer Protection Act, 1986 has been filed.
2.4. As the OP failed to provide proper services as such OP is liable to pay medical bills amount of Rs. 48,248/- with interest of 12% pa, compensation of Rs. 50,000/- as damages/compensation for suffering immense, utmost and unbearable harassment, hardship, pains, sufferings, mental shock, agony etc., litigation expenses and other appropriate relief.
2.5. The complaint is accompanied with letter of repudiation dated 19.01.2016, certificates of insurance [apart from, mediation/ conciliation report that parties could not settle the matter before Mediation Cell, which has also been mentioned in the complaint].
3.1 (Case of OP)- The OP opposes the complainant by denying allegations of intentional, willful and deliberate negligence and deficiency of services, it does not make out case of the complainant.
3.2. There is no dispute that the complainant was issued group health master policy under family floater policy, with effect from 11.09.2015 to 10.09.2016 extending risk cover to the complainant, his spouse and their two children, however, the parties were subject to terms and conditions of policy.
Guru Govind Hospital is not in network of OP and not included in the panel of hospital by the OP for any kind of treatment, which complainant was well aware of this fact, despite it the complainant get admitted in the said hospital instead of preferring the other network hospital. The claim was properly repudiated.
3.3. The complainant had raised claim for his hospitalization from 20.11.2015 to 26.11.2015 for fever with chill and cough management in Guru Govind Singh Hospital, the claim was registered, Surveyor/Investigator was appointed to investigate and verify the treatment.
During verification by the investigator, it came to the notice of OP that complainant was not given any effective treatment in the hospital during hospitalization and the treatment given was also prolonged by hospital, which was not necessary in such kind of cases. The complainant was just under observation for maximum time of his admission in the hospital, without there being any justified explanation by the treating doctor. Moreover, drugs were frequently changed without any proper reason and similar pattern is emerging from the card/summary. The treatment was not found genuine and even otherwise such medical management was not found under the policy, since policy was restricted to acute medical illness and minor surgery. The claim was found to be fraudulent, as it was found unnecessarily prolonged, random & sudden change of drug which indicates mala fide and consequently it was rightly repudiated by letter dated 19.01.2016 giving valid and genuine reasons. The claim, request and demand of complainant was found fraudulent and false. The complaint is liable to be dismissed as OP is not liable.
3.4. The written statement is accompanied with certificate of insurance, terms and conditions of policy, claim form, investigation report, discharge summary, invoices/ bills issued by Guru Gobind Singh Hospital, cash memos, clinical reports, repudiation letter.
4. (Replication of complainant) – The complainant denies all allegations of written statement by reaffirming his complaint as correct as well as by comparing contents of the written statement with the documents annexed with the written statement, to demonstrate that written statement pleads contrary to the facts mentioned in the documents especially investigation report of OP, which shows contradictory stand of the OP. The investigation report itself reflects that opinion of treating doctor, which was sought by the investigator that the admission of complainant and administration of medicine was need under the treatment. The change of medicine/drug for sick complainant was under the protocol for the care and treatment by senior physician having experience of more than 25 years in the field (post- M.D.).
5.1 (Evidence)- Complainant led his exclusive evidence by filing his detailed affidavit, supported with documentary record, which were annexed with the complaint;
5.2. On the other side, OP led evidence by filing affidavit of Sh. Satyabratta Das, Assistant Manager (Legal) with support of documents filed with reply.
6. (Final hearing)- The complainant and the OP were given opportunity to file their written arguments, consequently the complainant and OP have filed their respective written arguments. They were also given opportunity to make oral submissions, thus, Sh. Sudhir Kumar, Advocate for complainant availed this opportunity and presented oral submission but OP failed to utilize this opportunity and make oral submission, despite opportunity and adjournments just for OP.
However, the case of both the side will be considered on merits on the basis of material on record, besides written arguments, apart from the oral submissions on behalf of complainant.
7.1 (Findings)- The contentions of both the sides are considered keeping in view the material on record. It does not require to reproduce the rival contention, since the material facts, features, dates and other relevant circumstances (either in the form of pleading, oral narration or documentary record) have already been referred and mentioned in the case of the parties.
7.2. It is apparent that there are two sets of controversy firstly the Guru Gobind Singh Hospital was delisted by the OP but complainant had undertaken treatment there and the second issue is in respect of tenure of treatment vis-à-vis actual requirement of treatment. The next discussion will be on these two vital issues, it will determine the complaint and plea of OP.
7.3.1. According to complainant, he had firstly taken consultancy and then admission and treatment from Guru Gobind Singh Hospital, where he remained indoor patient from 20.11.2015 to 26.11.2015, which is during the currency of insurance policy for a period of one year with effect from 11.09.2015 and it was never made known to the complainant that Guru Gobind Singh Hospital was delisted by the OP. On the other side, OP maintains that the treatment was taken from the delisted hospital and OP is not liable for the same. The following conclusions are drawn from the evidence of the parties:-
(i) As per record, the OP has not established any documentary record/ proof that Guru Gobind Singh Hospital was delisted, that too on which date, month and year;
(ii) The complainant has proved detail of three patients in evidence (para 10 of affidavit and having corresponding paragraph 9 in the pleading/ complaint) that during the year 2015 and 2016 the OP has reimbursed medical bills to the patients, who took treatment from Guru Gobind Singh Hospital. The Para 9 of the written statement confirms that OP had reimbursed medical bills to those patients, however, OP explains that the medical treatment given to those patients was different from the case of complainant of medical management.
However, this explanation will not escape the OP since medical bills of those patients were reimbursed because Guru Gobind Singh Hospital was on the list and panel of OP. Had the Hospital not on the list of OP, then other patient could not have been reimbursed.
(iii) In view of (i) & (ii), the repudiation letter dated 19.01.2016 is bad in the eyes of law, the operating part thereof reads as: “on perusal of the claim documents, it is observed that the insured undergone treatment at Guru Gobind Singh Hospital, which is the delisted hospital by Chola MS. We have shared the list of all delisted hospitals of Chola MS along with the policy copy and also this list is displayed on our website for reference. Hence, we are unable to settle this claim.”
Accordingly it is held that this exclusive plea of delisted/ de-panel of Guru Gobind Singh Hospital could not have been proved by the OP and the complainant has taken the treatment from that hospital, which was on the panel of OP and repudiation of claim was contrary to the insurance contract between the parties. This controversy is decided against the OP that complainant took treatment from de-listed hospital.
7.3.2. The other issue is taken and there are rival plea. According to complainant, he was under medical treatment and supervision of the treating doctors of Guru Gobind Singh Hospital, he was following the instructions and procedure prescribed. The Investigator's report filed by the OP confirms circumstances in favour of complainant.
But on the other side, OP has reservations that not only the treatment was beyond requirement of stay in the hospital but also medicines were changed frequently, 50% of total bill amount was on investigation and medicine, which infers that actual and active treatment was not rendered. The following is the position on this issue under the law as well as conclusions are also culled out from the evidence:-
(a) In Saurashtra Chemicals Ltd Vs NIC 2019 19 SCC 70 (while relying upon Galada Power and Telecommunication Ltd. Vs United Insurance Co,. Ltd 2016 14 SCC 161), it was held that it is settled position that an insurance company cannot travel beyond the ground mentioned in the letter of repudiation, they cannot do so at the stage of hearing of consumer complaint before NCDRC.
(b) Further in JSK Industries Pvt Ltd. Vs Oriential Insurance Co. Ltd Civil Appeal No.7930/2022 dod 18.10.2022, it is held that repudiation letter is an important document in case of insurance claim. The wordings of repudiation letter should be clear and include all possible valid ground of repudiation. Since in later stages or in court of law, an insurance company cannot take stand other than what is mentioned in the repudiation letter.
(c) The OP had no plea in its repudiation letter that the treatment was beyond requirement of stay in the hospital but also medicines were changed frequently or 50% total bill amount was on investigation and medicine nor actual and active treatment was not rendered or there was change of drugs frequently and so on.
Thus, by reading together (a) to (c) above, the defence taken by OP first time in written statement is not tenable under law, in fact new factor is introduced by the OP to self serve its purpose to decline the claim.
7.3.3. Although it does not require to further discuss the evidence of parties, in view of conclusion drawn above, however, since this final order is appealable, parties have rival stand, therefore, it is appropriate to discussed and determine to avoid multiple round of lis between the parties. The following material conclusions are drawn from the evidence –
(i) The complainant was hospitalized from 20.11.2015 to 26.11.2015 but OP emphasizes in its reply and evidence that there was over-stay or he remained admitted beyond the period required.
The relevant record proved is investigation report. The investigator in its report (on page 4) made an observation that as per TPR chart the patient/ complainant was to be discharged earlier (i.e. than 26.11.2015, being the date of discharge) since no IV treatment was given to him after 25.11.2015. Thus, according to this report, the OP is contending that the stay in the hospital was beyond requirement and OP ought to have been discharged on or before 25.11.2015.
Whereas in the same report the investigator further opines that the treating doctor was consulted and the treating doctor told that in this case of pneumonitis insured required proper observation and IV antibiotic treatment, so stay of 6 day is justified.
This rival plea has two components viz. firstly the investigator is computing the time from 25.11.2015 morning when patient was given IV treatment, however, the effect of medicine could be seen after administering the medicine/IV, whereas OP’s investigator is assessing the circumstances subsequent to administration of medicine that since no further IV medicine was given and patient ought to have been discharged on 25.11.2015 or earlier.
Whereas the treating doctor has opined on the basis of examination of patient and considering the pneumonitis position of patient and that too after administering the medicine. The position of patient reached on 26.11.2015 was consequent to treatment & medicine given till 25.11.2015. There was no gauge to predict the clinical position of patient immediately after IV on 25.11.2015. On the one side there are theoretical calculations on paper basis and on the other side there are assessing of the symptoms & condition of patient physically & clinically the OP is relying upon former but the complainant is relying upon later being observations and opinion of treating doctor.
(ii) In the said investigation report (at page 3) the investigator mentions “stay seems prolonged as per TPR chart”, which indicates that the investigator was not sure and drawing inference, it is supposed to be so, since the patient was not before the Investigator; this expression has been used at more places in said report by investigator, it indicates that it is just an estimate or inference and one kind of opinion but not conclusive. On the other side, the treating doctor has given conclusive opinion on the basis of treatment being rendered to the complainant as well as considering his condition, reports, ailments that stay was justified.
However, the OP is twisting the facts in such a manner to indicate that the report of investigator is conclusive proof but the investigator themselves are not suggesting/opining so.
(iii) Was it justifies plea of OP, if so believed for the sake of logics, that complainant was discharged on 26.11.2015 instead of 25.11.2015, then his entire claim should be declined? The answer is in negative.
(iv) The investigator has also carried verification of hospitalisation of complainant, medical bills and record, the report on its page no. 3 mentions that the bills were found 'not inflated' and all the medical investigations report were matching with the IPD papers. The hospital has also followed complete norms.
(v) It is a classic case in itself that OP itself filed the investigation report as a piece of evidence but in its pleading and affidavit, facts mentioned are contrary to investigator's report.
(vi) The conclusions and reasons (i) to (v) above simply infers that OP has devised a way by twisting the facts of the report in pleading and evidene to its own convenience by imputing allegations of 'fraudulent claim' against the complainant. It is unfair on the part of OP besides unfair trade practice.
Thus it is held that the OP could not prove its own case by taking inconsistent plea in the written statement and affidavit of evidence from its own record of investigation report filed in evidence.
7.4. In view of the aforementioned conclusion, the circumstances established, proves the case of complainant that he was hospitalized from 20.11.2015 to 26.11.2015 in Guru Gobind Singh Hospital, Delhi, he was not provided cashless facilities and he was constrained to pay bills of hospitalisation and medicine. He was discharged under medical advises. However, the claim lodged under the policy was declined, it amounts to deficiency in services as valid claim lodged was declined on ground firstly by way of repudiation letter that Guru Gobind Singh Hospital was delisted by the OP and subsequently another new stand was taken in the written statement that stay and treatment in the hospital was beyond requirement or 50% medical bills were of medicine and investigation or changed frequently, which infers fraudulent claim, however, it could not have been established by OP. So, the complainant is held entitled for reimbursement of medi-claim amounts of Rs 48,248/-, which has been proved through medical papers vis a vis copies of bills have been filed by OP (since the originals were provided to OP by complainant).
7.5. The complainant claims interest of 15 % pa but as such there is no specified rate of interest. Since the complainant has parted with his money by paying medical bills, therefore, deserve interest; thus interest at the rate of 6% pa from the date of complaint till realization of amount in favor of complainant and against OP will meet both ends.
7.6. The complainant seeks compensation of Rs. 50,000/- on account of mental pain, harassment and agony, litigation cost and other appropriate relief. The circumstances of ailment, claim for medical expenses and efforts made are speaking themselves that he had faced all kind of difficulties, inconvenience and other trauma out of situation projected and created by OP, by taking frivolous and inconsistent plea and also treating unequally the complainant by declining legitimate medical bills amount but allowing others' claims having policy and treatment in the same hospital during that period (by reimbursing their medical bills), therefore, complainant is held entitled for compensation. Since the OP had declined valid claim of medical bills of Rs.48, 248/, therefore, it would be justified to quantify amount of compensation nearby to medical claim amount (which was deprived by OP), thus it is quantified as Rs.48,000/- as compensation. It is allowed in his favour and against the OP.
7.7. The complainant has also claimed other relief or order in his favour. It is manifest that this is a classic case in which OP is alleging that there are fraudulent plea of complainant vis a vis OP's own case is contrary to record filed by it, which in fact is not only inconsistent of its own case but it was devise to decline the valid claim of complainant. OP could not establish and prove its stand. It needs to curb this type of practice on the part of OP. How it could be cured? Could it be cured by awarding punitive damages?
Then, what is punitive damages and what is its purpose? The punitive damages (exemplary damages) are assessed and awarded in order to pinch respondent for outrageous/intolerant behaviour and/or to refrain it or to deter others from engaging in conduct similar to that which formed basis of law suit. Punitive damages are also imposed to reform defaulting party as well as to deter other from indulging in such wrongs. Punitive damages are generally given in civil action, however, there is also provision in section 14(1)(d) the Consumer Protection Act, 1986 for punitive damages. The punitive damages are not fine or penalty as fine is imposed in criminal trials.
It needs to refer the evidence on record, the complainant had consulted the doctor and then he was indoor patient, he had paid the bills, which are confirmed in the report of investigator appointed by the OP. Whereas the OP has adopted a strategy to decline the valid claim, firstly by way of repudiation letter dated 19.01.2016 that Guru Gobind Singh Hospital was delisted by the OP and subsequently another new stand was taken in the written statement [that stay and treatment in the hospital was beyond requirement or 50% medical bills were of medicine and investigation or changed frequently, which infers fraudulent claim]. Thus, it is fit case to award punitive damages against OP and the same are quantified as Rs.15,000/- in favour of complainant and against OP, keeping in view all circumstances. Cost is also quantified as Rs. 10,000/-.
8. Accordingly, the complaint is allowed in favour of complainant and against the OP to pay/reimburse medical bill amount of Rs.48,248/- along-with simple interest @ 6%pa from the date of complaint till realization of amount; compensation of Rs.48,000/-, punitive damages of Rs.15,000/- & costs of Rs.10,000/- to complainant.
OP is also directed to pay the amount within 30 days from the date of receipt of this order. In case amount is not paid within 30 days from the date of receipt of order, the interest rate will be 8% per annum on amount of Rs.48,248/- from the date of complaint.
9. Announced on this 28th July 2023 [श्र!वण 6, साका 1945].
10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
