Before  the District Consumer Dispute Redressal Commission [Central], 5th Floor                                                   ISBT Building, Kashmere Gate, Delhi

                                      Complaint Case No. 278/08.12.2017

Sunil Gadodia s/o Late Prem Chand Gadodia,

53, AB- first floor, Manhor Market, Katra Neel,

Chandni Chowk Delhi-110006

Also at -D-102, Vivek Vihar, Delhi-110092                               …Complainant                                

Versus

OP1-The New India Assurance Co. Ltd.

7-E, Jhandewalan Extension,  New Delhi-110055.

OP2-M/s. Raksha TPA Pvt. Ltd.,                                                    

C/o Escorts Corporate Centre, 15/5,

Mathura Road, Faridabad, Haryana.

OP3- Sh. Atul Garg, [Agent of OP1/

the New India Assurance Co. Ltd.]

R/o BU-99, Vihsaka Enclave, Pitampura,

Delhi-34                                                                                            …Opposite Parties

                                                                                             Date of filing              08.12.2017

                                                                                             Date of Order:            04.09.2023

Coram:   Shri Inder Jeet Singh, President

                Ms. Shahina, Member -Female

                 Shri Vyas Muni Rai,    Member

                                                       ORDER

Inder Jeet Singh, President

1.1. (Introduction to dispute of parties) –The consumer disputes is that complainant/Insured was reimbursed an amount of Rs. 19,405/- out of total medical bills of Rs. 46,926/- by the OP1/Insured & OP2/TPA and they failed to reimburse the balance amount of Rs. 27,521/- despite entitlement of complainant and that is why the complaint has been filed alleging deficiency in services. The complainant seeks reimbursement of balance bill amount of Rs. 27,521/-, compensation of Rs. 2,00,000/- towards harassment, torture, mental pain and agony besides cost of Rs. 25,000/- & other appropriate relief.

1.2. The OP1/Insured and OP2/TPA opposed the complaint that there is no deficiency of services since admissible amount within the terms & conditions of policy was allowed and remaining amount is not admissible in terms of exclusion clause no. 4.3 of the policy. Moreover, there is no cause of action in favour of complainant nor the present Forum/Commission has territorial jurisdiction on the matter as alleged cause of action of medical treatment is at Gurgaon, Haryana.

1.3.  OP3 filed a compact reply, in the form of a brief letter in a single paragraph in six lines that he was authorized agent of OP1, his role was that complainant purchased the medi-claim policy from OP1 through him, except that he has no role at all.

2.1. (Case of complainant) – On 11.07.2016, the complainant purchased medi-claim policy no. 31010034162500000472 from OP1 for sum insured of Rs. 8,00,000/- against payment of premium of Rs. 28,750/-. The policy was w.e.f. 25.07.2016 to 24.07.2017. OP2 is TPA of OP1. OP3 is authorized agent of OP1.  

2.2. On 08.12.2016 because of serious health issue, the complainant took treatment from Medanta Hospital, Gurgaon, where he remained as indoor patient from 08.12.2016 to 10.12.2016 and total bill issued was of Rs. 46,926/-, which was informed to OP1 and OP2 was to approve and make the payment, however, the complainant was kept awaited and bill was not paid immediately. Moreover, OP2 also kept awaited the complainant 2-3 hours unnecessarily and then the bill was partly approved of Rs.19,405/- without any reason or justification. The complainant had objected it. The complainant was constrained to make payment of balance amount of Rs. 27,521/- to the hospital.

2.3.  The conduct of OP1 & OP2 is highly objectionable. The claim was rejected without any justified reasons, whereas the OPs were under obligation to refund the amount as agreed at the time of taking a policy. The complainant has been regular client of OP1 for the last around 10 years continuously as he had been buying medi-claim policy. However, the acts and conduct of OPs have caused great humiliation, harassment, torture, mental pain and agony. There is deficiency in services. The complainant was constrained to send legal notice dated 17.12.2016 through his counsel, however, it was not complied with; OP2 has not responded the notice but OP2’s reply dated 30.12.2016 is vague and misconceived. That is why the complaint.

2.4.  The complaint is accompanied with copies of insurance policy, receipt, hospital bills, discharge summary, copy of letter dated 10.12.2016 allowing part claim, legal notice dated 17.12.2016 with postal receipt and reply dated 30.12.2016 of OP2. Since, the complainant had earlier filed complaint before the Consumer Disputes Redressal Forum (North District), however, it was withdrawn to present the complaint before the competent Forum having jurisdiction, attested copy of order dated 28.11.2017 is also filed.   

3.1. (Case of OP1 & OP2)- The OP1 & OP2 filed their joint written statement. They do not dispute the facts narrated in paragraph 2.1 above [about the status parties, policy issued, its tenure, sum insured and premium paid].

However, they opposed the complaint on other legal issues as well as on facts. The complainant took his treatment at Hospital at Gurugram, Haryana, therefore, no cause of action has arisen under the territorial jurisdiction of present Commission. Medanta Hospital has not been made party to the complaint, its suffers from non-joinder of a party. There is no deficiency of services since admissible amount within the terms & conditions of policy was allowed and remaining amount was inadmissible in terms of exclusion clause no. 4.3 of the policy. There is no cause of action in favour of complainant. The complainant is misadvised for filing the complaint, it is abuse of process of law.  

3.2. As per the discharge summary, the complainant was diagnosed of “acute gastroenteritis, type II diabetes mellitus, hypertension coronary artery disease". While taking admission in the Medanta Hospital, by the complainant was complaining of multiple episodes, pain abdomen, and fever, but simultaneously the insured was also investigated/treated for aforesaid co-morbidities during hospitalization from 08.12.2016 to 10.12.2016 (two days), the claim has been processed according to the treatment given for loose stools, pain abdomen and fever, as diabetes/hypertension fall under first two years exclusion as per clause 4.3 in the policy terms and conditions.

3.3. The OP2 has considered the terms & conditions of the policy, the nature of ailments and the bill, consequently, the admissible amount of Rs. 19,405/- was considered and the claim to that extent was allowed. Considering the discharge summary and treatment of “acute gastroenteritis, type II diabetes mellitus, hypertension coronary artery disease”, the medical claim could not be allowed, however, the sum insured was reduced by considering treatment given to the complainant for loose stools, pain abdomen and fever. The OP2 had also replied the legal notice accordingly.

3.4. The OPs denies other allegations of the complaint with request to dismiss the complaint. The reply is accompanied with photocopy of terms & conditions of policy under the title New India Medi-claim Policy, in which exclusion clause 4.3.1. is mentioned (but no clause 4.3 as stated in reply).

3.5. (Case of OP3)- OP3 responded that his role is to the extent of getting the medical policy for complainant from OP1 and nothing else.    

4.1 (Replication of complainant) – The complainant filed rejoinder to the written statement of OP1 & OP2 by denying all allegations against him.  The present Forum/Commission has jurisdiction and OPs have taken the objection unnecessarily, since similar objection was taken by them earlier when complaint was filed in the North District, which was withdrawn. Now, the OPs are estopped to raise this objection. Since, the valid claim was not reimbursed, there is cause of action in his favour. The complaint was filed properly. The complainant was given treatment for the ailments, certain medical tests were also conducted, however, OPs are denying the claim by misinterpreting terms & conditions of the policy to escape from the liability. The claim lodged is within terms & conditions of the policy. The deduction of the amount for treatment was not justified.  The complainant in para-3 of replication gives detail that he had obtained insurance policy for sum insured of Rs. 2,75,000/- w.e.f. 25.07.2012 to 24.07.2013, which was continuously renewed from time to time and in the insurance policy w.e.f. 25.07.2014 the sum insured was Rs. 5,00,000/- and in the next renewed policy w.e.f. 25.07.2015 the sum insured was Rs. 8,00,000/-. The paragraph 4 of the rejoinder also gives details the deductions carried were against the terms and conditions of the policy for sum insured of Rs. 8,00,000/- as the partly claim allowed was on the basis of sum insured of Rs. 2,75,000/-, which ought to have been on the basis of  sum insured of  Rs. 8,00,000/-. The complaint is correct.

4.2. The OP1 & OP2 have also filed separate application u/s 11 of the Consumer Protection Act, 1986 that this Forum/Commission lacks territorial jurisdiction, which was opposed by the complainant by separate reply. Since the same issue is also raised in the reply to complaint as well as its response is given by complainant in the rejoinder, therefore, the same will be dealt appropriately.   

5.1. (Evidence)- The complainant led his evidence by filing detailed affidavit with the support of documents filed with the complaint.

5.2. OPs also led evidence by filing affidavit of Sh. Dharamvir, Regional Manager, the affidavit is also replica of reply and New India Medi-claim Policy has been relied upon by the OP.

6.1 (Final hearing)- The complainant filed its detailed written arguments heading-wise, it was followed by oral submissions by Sh. Subhash Garg, Advocate for complainant.

6.2. OP1 & OP2 filed their brief written arguments, which are written manually on one sheet and no oral submissions were made on behalf of OP1 & OP2.

6.3. OP3 has neither filed any evidence nor written arguments nor oral submissions.

6.4. However, the record and contentions of all parties will be considered to appreciate their respective cases.

7.1 (Findings)- The contentions of both the sides are considered keeping in view the material on record and the provisions of law. Since, there are few issues of mixed question of  law point and facts, first of all, they are being taken one by one in next paragraph 7.2. and thereafter remaining issues will taken up in paragraph  7.3. The rival contentions of the mixed question of law and fact have already been narrated, therefore, the issues will be decided in brief.

7.2.1. (on the point of territorial jurisdiction)- According to OPs, place of arising of the cause of action is the criteria for determining the territorial jurisdiction. Since complainant took treatment at Medanta Hospital, Gurgaon, Harayana thus this Forum/Commission in Delhi lacks jurisdiction. Whereas, the complainant has also explained the circumstances that earlier objections were also taken, when complaint was filed in CDRF (North District), that is why it was withdrawn there and it was filed in the present competent CDRF (Central District).

            Whereas, as per the scheme of section 11(2) (c) of the Consumer Protection Act, 1986, cause of action is one of the determinants for territorial jurisdiction and other clauses of section 11(2)(a) &(b) are determinant of territorial jurisdiction on the basis of place of resident or business or branch office of opposite party. The complainant has proved insurance policy, it shows that OP1 has Divisional Office of business in Jhandewalan, New Delhi, which is within the area of Central District of this Commission. Accordingly, this issue is decided against the OP1 & OP2.  On these terms,  the separate application u/s 11 Act 1986 of OP1 & OP2 [filed as objection on the point of jurisdiction]  stands dismissed and disposed off.    

7.2.2. (On the point of mis-joinder of parties )- On plain reading of pleadings of the parties and their respective evidence, the allegations and relief claimed are against OP1/Insurer & OP2/TPA on account of deficiency of services and harassment, mental agony & pain, etc. It is also not the case of medical negligence. Therefore, Medanta Hospital, Gurgaon is neither a necessary party nor a proper party. This objection of OPs is without any substance and weight.  It is decided against the OP1 & OP2. The OPs ought to have restraint itself from this type of objection, which appears to have been taken just for the sake objections.

7.3.1. It is apparent that tenure of policy, or the treatment of complainant as indoor patient from 08.12.2016 to 10.12.2016 or the ailments and treatment given or  the total bill amount was Rs. 46,926/- out of which Rs. 19,405/- was paid to the complainant are not disputed.

        Therefore, the narrow dispute is whether or not complainant is entitled for remaining amount of Rs. 27,521/- OR whether or not exclusion clause 4.3.1. would be applicable. For the following reasons, it is held that the exclusion clause 4.3.1. is not applicable and complainant is entitled for balance amount of Rs. 27,521:-

(i) The exclusion clause 4.3.1. covenants that claim will not be payable unless insured person has continues coverage in excess of 24 months with the insurer and the expenses enumerated there-under are not payable. There is also a note appended to clause no. 4.3.1. that even after 24 months of continuous coverage, the illness enumerated will not be covered if they arise from pre-existing condition, until 48 months of continuous coverage have elapsed since the inception of first policy with the Insurer. The OP1 and OP2 are relying upon this clause.

(ii) On the other side, the complainant has given details of policy from 25.07.2012 (which has already been introduced in paragraph-4 above) that the policy had inception from 25.07.2012 for sum insured of Rs. 2,75,000/- and the latest policy is w.e.f. 25.07.2016 to 24.07.2017 for sum insured of Rs. 8,00,000/-. The complainant was hospitalized on 08.12.2016, which is within the period of the latest policy w.e.f. 25.07.2016 to 24.07.2016.

(iii) The discharge summary specifies diagnoses and co-morbidities (which has  already been detailed in paragraph 3.2. above).

(iv) By reading sub-clauses (i) to (iii) above, there is period of 24 months for exclusion as per clause 4.3.1. from the inception of first policy, but, the exclusion period is of 48 months in case of pre-existing condition.

            The discharge summary does not specifies any exact period of pre-existing condition of ailments of the complainant except coronary artery disease-post PTCA (2013). It is undisputed fact that the complainant has been taking policy w.e.f.  25.07.2012 and 48 month period ends on 24.07.2016 (in case clause of pre-existing disease is considered) vis-à-vis the complainant was hospitalized on 08.12.2016, which is after 24.07.2016. To say, the complainant was hospitalized on 08.12.2016 after a period of 48 months to be computed from inception of first policy w.e.f.. 25.07.2012. Therefore, so far period of 48 month is concerned, the case of complainant is after of period of 48 months and to that extent exclusion clause 4.3.1. does not apply.

(v) Now question arises whether sum insured of Rs. 2,75,000/- is to be considered, as invoked by the OP1 & OP2 or sum insured of Rs. 8,00,000/- is to be invoked as contended by the complainant. The terms & conditions of the policy or exclusion clauses or the evidence of OPs do not highlight this aspect. Therefore, the plain meaning of terms & conditions are to be invoked that 48 months have already been elapsed, exclusion clause 4.3.1. does not apply, therefore, the complainant is entitled for reimbursement on the basis of sum insured of Rs. 8,00,000/-. In addition,  OPs have not pointed or proved that there exists any covenant that after period of 24 months or 48 months, as the case may be, the original policy sum assured is to be considered and not the sum insured in the policy under which claim is filed.

(vi) In view of the above, the complainant is held entitled for reimbursement of balance amount of Rs. 27,521/-, since want of reimburse of valid claim is deficiency of services. There is cause of action in favour of complainant and against OPs, which stand proved.

7.3.2 The complainant seeks compensation of Rs. 2,00,000/- on account of mental pain, harassment, torture, agony apart from litigation cost of Rs. 25,000/- and other appropriate relief.

The circumstances of ailment, claim for balance 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 OP1 & OP2. The complainant was constrained to pay the balance payment of Rs. 27,521/- from his pocket, he had arrange money and/or he was deprived of use of his money, which he could have used it had his medical bill were paid completely, therefore, complainant is held entitled for compensation.  Since the OPs had declined valid claim of medical bills of Rs.27,521/, therefore, it would be justified to quantify amount of compensation of Rs. 13,500/-. It is allowed in his favour and against the OP1. The complainant was constrained to issue the legal notice followed by the present complaint to seek balance medical bill amount, therefore, cost is payable by the OP1, the Cost is quantified as Rs. 10,000/-.

7.3.3. The complainant has also claimed other appropriate relief but without mentioning the same. Since the complainant has parted with his money by paying medical bills, therefore, he deserves interest;  thus interest at the rate of 6% pa from the date of complaint till realization of amount in favor of complainant and against OP1 will meet both ends.

7.3.4. The insurance contract is between the complainant and OP1. OP2 is TPA of OP1. TPA is a facilitator to the assess the claim, TPA is not insurer. Therefore, complaint against OP2/TPA is dismissed.

7.3.5.  The OP3 is an authorized agent of OP1 and it brought the Insurer/OP1 and the Insured/complainant together, then insurance contract was entered between the complainant and the OP1. Thus, the complaint against OP3 is dismissed.

8. Accordingly, the complaint is allowed in favour of complainant and against the OP1 to pay/reimburse balance medical bill amount of Rs.27,521/- along-with simple interest @ 6%pa from the date of complaint till realization of amount; compensation of Rs.13,000/-, & costs of Rs.10,000/- to complainant. 

            OP1 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, otherwise the interest rate will be 8% per annum on amount of Rs.27,521/- from the date of complaint.  The complaint against OP2 and OP3 is dismissed, as determined in paragraph no.7.3.4 and 7.3.5 above.

9.  Announced on this  4th September,  2023 [ भाद्र, 13 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