Karnataka

Bangalore 4th Additional

CC/15/1890

Mrs. Nargis K. Mithani, W/o Mr. Kabiruddin Mithani, - Complainant(s)

Versus

The Authorized Signatory, Raksha TPA (P) Limited, & others - Opp.Party(s)

Sri. P.N. Ramesh, Ms JAyanthi M.B

01 Feb 2018

ORDER

Complaint filed on: 21.11.2015

                                                      Disposed on: 01.02.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1890/2015

DATED THIS THE 1^ST FEBRUARY OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Mrs.Nargis K Mithani,

W/o Mr.Kabiruddin Mithani, Aged about 58 years old,

R/at 26/1, Muniswamy

Road, Taskar Town,

Bengaluru-51.

 

By Advocates

M/s.Bengaluru Law Associates     

 

V/s

Opposite party/s

Respondent/s:-

 

1. The Authorized Signatory, Raksha TPA (P) ltd.,

No.412, 4^th floor,

Jindal Center, 4^th main,

100 feet road, Koramangala, Bengaluru-34.

 

Ex-parte

 

2. The Authorized Signatory, Oriental Insurance co., ltd., #16/1, S.P.Complex,

Apple Villa, 1^st floor,

Lalbagh road,

Bengaluru-27.

 

By Adv.Sri.B.S.Krishna

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party no.1 & 2 (herein after referred as Op.no.1 & 2 or Ops) seeking issuance of direction to clear and reimburse the legitimate claim of Rs.1,25,000/-. Further direct to pay Rs.20,000/- towards mental agony and cost of Rs.20,000/-, totaling to a sum of Rs.1,65,000/- along with interest at 16% p.a. from the date of repudiation and to pass such other orders deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that, based on the representations doled by the representatives of the Ops, the Complainant was prevailed upon to take the “Mediclaim Insurance policy for Individuals” (herein after referred as mediclaim policy) by paying the prescribed premiums vide policy reference no.421403/48/2014/452. It is the case of the Complainant that, she was experiencing severe pain in both knees joint which practically curtailed her day to day living decided to seek medical investigation by way of x-rays of knees (AP & Lateral view) which revealed the present of Osteoarthritis in both knees. Based on this, the medical advice was to undergo treatment using Sequentially Programmed Magnetic Field Therapy (hereinafter referred as SPMF therapy) for 21 days consecutively at SBF Healthcare and Research Centre (hereinafter referred as SBF Healthcare) which Wg.Cdr.Dr.V.G.Vasishta (Retd) (hereinafter referred as the said doctor) is the CEO. During the treatment the affected joints are treated using the SPMF therapy, one hour every day followed by physiotherapy for ½ hour continuously for 21 days. The treatment afforded has resulted in substantial relief from the pain and has increased her mobility substantially, which enabled the client to resume her normal day to day activities. The Complainant further submits that, she in all has expended for the treatment a sum of Rs.1,25,000/- and the same was paid to SBF healthcare by way of credit card. The Complainant after having obtained the necessary details of the treatment afforded to her has lodged a claim for payment of Rs.1,25,000/- based on the treatment summary and consolidated bill duly given by the SBF healthcare. However, much to the shock and dismay of the Complainant, the same stands duly repudiated vide the communication dtd.21.07.14 by Op.no.1. Vide the said communication the Op.no.1 has conveniently rejected the claim of the Complainant on the following ground which reads as “charges related to OPD expenses are not payable by insurance company, hence claim is rejected”. The Complainant further submits that the reason is duly illegal, unwarranted and the legitimate claim of the Complainant rejected only in order to not pay the legitimate amount expended by the Complainant for which, the Complainant was eminently eligible for reimbursement. The repudiation states that the treatment comes under experimental, unproven or alternative medicine which by itself is baseless and without any foundation. In this regard the Complainant states that as earlier, for severe joint pains namely osteoarthritis, the only effective remedy was to undergo knee replacement surgery which was not only time consuming but also expensive covering number of days of hospitalization. The said doctor who has an MD in Radiology has conducted extensive research in the said filed. The research and clinical trials indicated substantial relief to several patients and therefore have been published in several National and International journals of repute. In this regard, it is also pertinent to state that, in the wake of the success of the medical research of the said doctor, the Hon’ble State Govt., of Karnataka has designated him with “Suwarna Karnataka Rajyotsava Award” which speaks for itself. In this regard, the Complainant points out that as per the terms & conditions of the policy itself; there is no whisper that the treatment for osteoarthritis is precluded from seeking reimbursement. The very clause quoted by the Op.no.1 cannot be a ground for repudiation as the fact of the matter is that even as per the policy, as per clause 3(b), where there are technical advances due to which, hospitalization is required for less than 24 hours only. The Complainant further submits that the said clauses have no application at all to the facts and circumstances of the case. As enumerated above, the treatment is a result of technological advances which results in the growth of new cartilage. Hence, Complainant caused a legal notice dtd.02.09.14 to the Ops, but no satisfactory reply from them. Therefore the Complainant is constrained to approach this forum.

 

3. On receipt of the notice, Op.no.1 did not appear before this forum and hence placed exparte. Op.no.2 did appear through his counsel and filed version, except admitting, obtaining of mediclaim policy by the Complainant, denied the other contents of the complaint filed by the Complainant. It is the case of the Op.no.2 that, the Complainant had filed earlier complaint with respect to the same set of facts and reliefs arising out the same cause of action as stated in this petition, in previously instituted complaint no.74/2015. The said complaint was dismissed for default on 30.07.15. Hence the second petition on the same cause of action is not maintainable. The Op.no.2 further submits that, without prejudice to the above, submits that the husband of the Complainant took out the said mediclaim policy. The period of insurance commenced from 24.07.13 and was in force till 23.07.14. The Op further submits that, the Complainant had the problem of pain of both knees and was suffering out of the same, since one year as on May 2014. She underwent SPMF therapy from 31.05.14 to 20.06.14 on OPD basis. the claim was made on 27.06.14 for a sum of Rs.1,25,000/- to Op.no.2 and the same was processed by Op.no.1, who are the authorized claim settlement agents on behalf of the Op.no.2, authorized by IRDA. The Op further submits that, the Op.no1 after due investigation of the claim and the connected papers, rejected the claim of the Complainant who had the pain of both the knees and she had the problem for the past one year as on the date of treatment i.e.31.05.14. The Complainant undergone SPMF therapy from 31.05.14 to 20.06.14 on OPD basis. Hence TPA has rejected the claim, as the treatment charges incurred relates to OPD treatment and not as in-patient treatment as per the terms of the policy, more particularly as per condition 2.3 of the policy and other conditions 4.3 xxiv and 4.13. The Op further submits that, individual mediclaim policy condition clearly states that the procedures/treatments usually done in outpatient are not payable under the policy even if converted to day car surgery/procedure or as in-patient in the hospital for more than 24 hours. Policy condition 2.3 clearly states that “expenses on hospitalization are admissible only if hospitalization is for a minimum period of 24 hours.” The Op.no.2 further submits that, he is not aware that the Complainant has spent Rs.1,25,000/- towards treatment. However, since the complaint was not hospitalised for a minimum period of 24 hours and she was treated as OPD patient, she is not entitled for claim made by the Complainant Hence, after scrutiny of the claim and the related bills, treatment summary given by SBF healthcare, Op.no.1 rightly recommended Op.no.2 for Non-payable claim. Hence on these grounds and other grounds prays for dismissal of the complaint.

         

          4. The Complainant to substantiate her case filed affidavit evidence and got marked the documents Ex-A1 to A7. The Deputy Manager of Op.no.2 filed affidavit evidence and got marked the documents Ex-B1 to B8. Both filed written arguments. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether, the complaint filed by the Complainant is in time ?
2. Whether, is there any deficiency of service on the part of Ops, if so, whether the Complainant entitled for the relief sought for ?  
3. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Affirmative  

Point no.2: In the Affirmative

Point no.3: As per the final order for the following

 

REASONS

 

          7. Point no.1:  In the complaint itself, the Complainant has specifically stated that she had filed a complaint for similar relief in CC.no.74/2015 and the same was dismissed for non-prosecution, as the Complainant was having certain health issues. This fact also reiterated by the Op.no.2 in its version at para 2 stating that the 2^nd petition is not maintainable. In this context, we place reliance on the contents of Ex-A7 which is certified copy of the order sheet of CC.no.74/2015, wherein the said complaint was came to be filed through the Complainant on 13.01.15 and the same was came to be dismissed on 30.07.15. The present complaint filed on 21.11.15, so the present complaint is within two years from the date of cause of action. Hence the 2^nd complaint i.e. the present complaint filed by the Complainant is well within time. Now, the question that crops up for our consideration is, whether the 2^nd complaint filed by the Complainant is maintainable. In this context, we place reliance on the decision of Hon’ble Supreme Court in (2000) 2 CPR 27 (SC) in the case of New India Assurance co., v. Srinivasan, wherein it is held that:

On a question whether a second complaint would be maintainable in the event of dismissal of the first complaint, the Supreme Court observed that justice cannot be denied by the rule of technicality. It held that the Code of Civil Procedure can be applied to proceedings under the Consumer Protection Act only to a limited extent, and the Act being enacted for protection of consumers, the interest of justice cannot be defeated by a rule of technicality.

 

In the light of the decision cited supra, we come to the conclusion that the 2^nd complaint is maintainable. Accordingly we answered the point no.1 in the affirmative.

 

8. Point no.2:  The undisputed facts which reveals from the pleadings of the parties goes to show that the Complainant has availed the “Mediclaim Insurance policy for Individuals” by paying the prescribed premiums vide policy reference no.421403/48/2014/452. The said policy is marked as Ex-B1. It is also not in dispute that she has undergone for the treatment of Osteoarthritis in both knees, by using Sequentially Programmed Magnetic Field Therapy (SPMF therapy) for 21 days consecutively at SBF Healthcare which Wg.Cdr.Dr.V.G.Vasishta (Retd) is the CEO. It is also not in dispute that during the treatment the affected joints are treated using the SPMF therapy, one hour every day followed by physiotherapy for ½ hour continuously for 21 days. The said treatment afforded has resulted in substantial relief from the pain and has increased her mobility substantially, which enabled the client to resume her normal day to day activities. It is also not in dispute that the Complainant in all has expended for the treatment a sum of Rs.1,25,000/- and the same was paid to SBF healthcare by way of credit card. It is also not in dispute that the Complainant after having obtained the necessary details of the treatment afforded to her has lodged a claim for payment of Rs.1,25,000/- based on the treatment summary and consolidated bill duly given by the SBF healthcare dtd.20.06.14. It is also not in dispute that the said claim has been duly repudiated by the Op.no.1 vide the communication dtd.21.07.14. Copy of it marked as Ex-B3, stating that “charges related to OPD expenses are not payable by insurance company, hence claim is rejected”. To substantiate its stand, Op has placed reliance on unreported decision of Hon’ble National Commission in R.P.no.2016/2012 arising out of order dtd.20.03.12 in appeal no.48/2011 of Hon’ble Tamilnadu State Commission in the case of R.W.H.Ghyaz Ahmd v. New India Assurance co., ltd., & ors. In the said decision it was held that “treatment taken as out-patient, for dental problems, falls outside the scope of the policy, under exclusion clause 4.7. Consequently, the claim was rightly repudiated”. The facts of the said decision are quite different from the facts of the present case on hand. In the said decision it is also stated in para 2.3 that “Expenses on hospitalizations for a minimum period of 24 hours are admissible. However this time limit will not apply for specific treatment i.e. Dialysis, Chemotherapy, and Radiotherapy.” But in the instant case, instead of going for surgery, the Complainant was advised to take the said treatment continuously one hour daily for 21 days.  In this context, we placed reliance on the decision of Hon’ble State Commission which has been upheld by Hon’ble National Commission at the later stage. Ongoing through the contents of the decision cited by the learned counsel for the Op, which is not applicable to the present fact of the case. Now, coming to the decision cited by the learned counsel for the Complainant to substantiate the claim of the Complainant are as follows:

(1) Hon’ble Karnataka State Commission had an occasion to consider in appeal no.2502/10 dtd.03.08.11 in the case of National Insurance co., ltd., v. O.P.Kinger and Anr., arisen out of the order passed by 1^st Addl., DCDRF, Bengaluru in CC.no.2966/2009 dtd.19.04.10, wherein at para 14 it held as under:

14. The D.F has stated in para 7 that in the said case at para 6, it has been ordered thus:-

“It is hereby ordered that the admissible amount of claim related to Cytotorn Therapy (RFQMR) to regenerate and repair carilage of the knees undertaken by the Complainant and his wife in Sibia Medical Centre be paid to the Complainant by the insurer”.

Therefore, in the instant case, the wife of the Complainant has undergone treatment for Cytotron therapy. If the Insurance company honors the reimburse the medical expenses of the beneficiary of the policy holder in one State and the other State of the same insurance company repudiated the same, which amounts to discrimination. Therefore, even if the treatment has taken by the patient as on out-patient without admitting as an inpatient, is entitled to claim reimbursement. The main purpose of getting the medi-calim policy is to reimbursement. Therefore, the Osteoarthritis is bound to occur in the elderly people cannot be denied. Therefore, we are of the opinion that the D.F. is right in allowing the complaint of the respondent no.1.

 

(2) Decision of Hon’ble National Commission in R.P.no.2362/14 dtd.23.02.15 in the case of New India Assurance co., ltd., & Anr., v. Ishu Motwani, arisen out of Appeal no.234/14 dtd.04.04.14 of Hon’ble Karnataka State Commission, wherein it is held as under:

This Revision Petition, by the Petitioners, calls in question the correctness and legality of order dtd.04.04.14 passed by the Karnataka State Commission in appeal no.234/14 in the case of New India Assurance co., ltd., & Anr. vs. Ishu Motwani. By the said order, the State Commission confirmed the order of the District Forum and dismissed the appeal at the stage of admission.

2. The brief facts of the case as set out in the complaint are that the Complainant had taken the ‘Goodhealth Group Mediclaim Policy” which has been in force from 01.09.2003 and the Complainant was experiencing severe pain in both knee joints and underwent treatment using Sequentially Programmed magnetic Field Therapy (SPMF therapy)  at SBF healthcare & research centre. The Ops were duly intimated regarding the treatment and a sum of Rs.1,13,089.50/- was spent for which the Complainant lodged the claim on 10.01.13. The Ops repudiated the claim vide letter dtd.27.02.13 on the ground as per clause 4.4.17 such treatment is not covered under the policy. The District forum allowed the complaint in part directing the Op.no.1 & 2 to reimburse Rs.1,13,089.50/- to the Complainant together with cost of Rs.20,000/-.

3. Aggrieved by the said order, the Ops preferred appeal no.234/14 before the Karnataka State Commission. The delay of 39 days was condoned and the State Commission observed that the line of treatment taken by the Complainant is an experimental one and the Complainant has taken treatment as an outpatient for one hour every day followed by Physiotherapy for half an hour continuously for 21 days consecutively. Holding that the insurance company has repudiated the claim on technical grounds, the State Commission confirmed the order of the District forum and dismissed the appeal at the stage of admission.

4. Aggrieved by this order, the Ops preferred this R.P before this Commission.

5. It is the case of the Revision Petitioners that the treatment which the Respondent has taken does not fall within the purview of the policy. The respondent was treated for Osteoarthritis of both knee using SPMF therapy for 21 days consecutively in the SBF healthcare. During this treatment, the affected joints were treated in the AKTIS TM machine for one hour followed by physiotherapy for ½ hour and observation for 1½ hours. The said treatment was taken from 21.12.12 to 10.01.13. The respondent made a claim of Rs.1,13,089.50/- which was repudiated by the Revision Petitioners under exclusion clause 4.4.17 which reads as under:

“All treatment like age related Mascular Degeneration (ARDM) and or Choroidal Neo Vascular Membrane done by administration of Lucentis/Avantis/Macugen/Avastin and other related drugs as intravitreal injection, Rotational field quantum magnetic resonance (RFQMR), External counter pulsation (ECP) and Hyperberic Oxygen Therapy.”

6. The learned counsel for the revision petitioners drew our attention to RFQMR, i.e. Rotational Field quantum Magnetic Resonance treatment which is excluded. We observe from the record that SPMF treatment which the Complainant had undergone is not specifically excluded and it is stated before us that this treatment involves therapy where cartilage is regrown and this helps in slowing down the degenerative Arthritis.

7. Brief perusal of the Policy shows that it is a Good health Policy Certificate issued on 01.09.12 to the insured who is 61 years of age. Issuing a policy to a person of 61 years of age and then stating that ‘age related diseases’ are excluded amounts to unfair trade practice. When SPMF therapy is not specifically excluded, the act of the Ops in repudiating the claim on the ground that the treatment is similar to RFQMR without adducing any expert evidence to that effect or filing the affidavit of any doctor to evidence the same, amounts to deficiency of service.

8. Based on the material on record, we are of the considered view that the State Commission has rightly dismissed the appeal and we direct the Revision Petitioners to reimburse the amounts directed by the District forum within four weeks from the date of receipt of this order.

 

9. It is very interesting to note that in similar types of cases, the claim for reimbursement is allowed in the state of Chandigarh, Punjab, Haryana, Himachal Pradesh, Jammu & Kashmir as per the order passed by insurance Ombudsman which can be seen in the case no.GIC/271/UII/11/07 in the matter of Som Nath Gupta Vs. United India Insurance co., ltd., dtd.09.03.2007. The same has been considered by the 1^st Addl., DCDRF, Bengaluru in CC.no.2966/2009 by allowing the similar complaint filed by the Complainant therein and ordered Op.no.1 to pay the claim amount.

 

10. Ongoing through the 3 decisions cited supra, the act of the Ops are nothing but unfair trade practice as “Issuing a policy to a person of more than 58 years of age and then stating that ‘age related diseases’ are excluded amounts to unfair trade practice. When SPMF therapy is not specifically excluded, the act of the Ops in repudiating the claim on the ground that the treatment is similar to RFQMRT (Rational Field Narrow Focuses Quantum Magnetic Resonance Treatment) without adducing any expert evidence to that effect or filing the affidavit of any doctor to evidence the same, amounts to deficiency of service. Hence, we come to the conclusion that there is unfair trade practice on the part of Ops in repudiating the legitimate claim of the Complainant, so also, the deficiency of service. When such being the fact, the Complainant is entitled for the claim amount of Rs.1,25,000/- (Rs. One Lakh Twenty Five Thousand Only). With regard to the mental agony, trauma and hardship suffered by the Complainant on account of unfair trade practice as well as deficiency of service on the part of Ops, if an amount of Rs.10,000/- is awarded, we hope ends of justice would met sufficiently. Further, we deem it just and proper to fix an amount of Rs.1,000/- being cost of litigation.

 

11. Before parting that, we place reliance on the contents of para 5 of the complaint, wherein the Complainant has specifically stated with regard to the similar type of treatment taken by dignitaries as Her Excellency Mrs.Pratibha Patil, the Hon’ble former President of India, Mrs.Renuka Chowdhury, former Hon’ble Minister for Women & Child Development, Air Chief Marshal I.H.Latif (Retd), former Chief of the Air Staff, Ambassador to France, the then governor of Maharashtra and former Governor of Uttarkhand who have all given laudable remarks commending the treatment afforded to them by Wg.Cdr.Dr.V.G.Vasishta (Retd) who is the Chief Executive Officer of SBF healthcare and research centre, which can be seen ongoing through Ex-A4. This fact is not denied by the Ops. Accordingly, we come to the conclusion that the repudiation of the claim by the Ops is unjust, hence answered the point no.2 in the affirmative.

 

         12. Point no.3: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is hereby allowed.  

 

          2. Op.no.1 & 2 are jointly and severally liable to reimburse the claim of Rs.1,25,000/- to the Complainant with interest at the rate of 18% p.a. from the date of filing of this complaint till the date of realization. Since Op.no.2 is the insurance company, we fastened the liability on it to pay the said amount to the Complainant, within six weeks from today.

 

3. Further we also direct the Ops to pay an amount of Rs.10,000/- towards mental agony, trauma and hardship suffered by the Complainant.

 

4. Further we also direct the Ops to pay an amount of Rs.10,000/- being the cost of litigation.

         

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 01^st February 2018).

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Smt.Nargis K Mithani, who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Terms & conditions of the policy
Ex-A2	Invoice dtd.20.06.14
Ex-A3	Letter of repudiation dtd.21.07.14
Ex-A4	Laudable remarks in respect of CEO of SBF
Ex-A5	Legal notice dtd.02.09.14
Ex-A6	Original postal receipts and Postal acknowledgements
Ex-A7	Order sheet of CC.no.74/15 – dismissed for non-prosecution dtd.30.07.15

 

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.R.S.Arasu, who being the Deputy Manager of Op.no.2 was examined.

Copies of Documents produced on behalf of Opposite party/s

 

Ex-B1	Individual Mediclaim policy
Ex-B2	Terms & conditions of the policy
Ex-B3 to B5	Email correspondences
Ex-B6	Letter from CBO 11 to TP HUB of Oriental Insurance dtd.18.03.15
Ex-B7	Letter dtd.22.09.14
Ex-B8	Notice dtd.02.09.14

 

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT