Complaint No: 358 of 2019.
Date of Institution: 09.12.2019.
Date of order: 03.11.2023.
Baldev Raj Prashar Son of Sh. Sham Dass Prashar, resident of Kothi No. 341, Gopal Nagar, Samadh Road, Batala District Gurdaspur.
….......Complainant.
VERSUS
1. The Vipul Med Corp TPA Pvt. Ltd., SCI No. 98, First Floor, Industrial Area, Phase 2, Chandigarh - 160002, through its Manager.
2. National Insurance Co. Ltd., Branch office Jalandhar Road Batala District Gurdaspur, through its Manager.
….Opposite parties.
Complaint U/s 12 of the Consumer Protection Act.
Present: For the complainant: Miss.Meena Mahajan, Advocate.
For the opposite party No.2: Sh.Ajay Dadhwal and Sh.Sumit
Pathania Advocates.
Opposite party No.1: Exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Baldev Raj Prashar, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against The Vipul Med Corp TPA Pvt. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant obtained Health Insurance Policy from the OP No.2 bearing policy No.401211501710000164 valid for the period from 07.03.2018 to 06.03.2019. It is further pleaded that complainant is insured for a sum of Rs.5,00,000/- and it is a joint Insurance policy of complainant and his wife. It is further pleaded that the complainant has been purchasing the mediclaim Insurance Policies from the OP’s continuously since 2004 which is a period of more than 15 years. It is further pleaded that said mediclaim policy was got renewed by the complainant in the subsequent years also which is continuing at the time of filing the present complaint. It is further pleaded that only policy schedule was supplied to the complainant and no terms and conditions were supplied to the complainant. It is further pleaded that the complainant suffered uncontrolled Urine passing problem and went to Smt. Parvati Devi Hospital A-Block Ranjit Avenue Amritsar and consulted with Dr. Bholla Singh Sidhu on 09.06.2018 and he took the samples and got medically examined from Advanced Diagnostic Laboratory Amritsar and as per the test reports, the complainant was suffering from CA-prostate and Tumor in urinary bladder. It is further pleaded that on 09.06.2018, the complainant got admitted in the Parvati Devi Hospital and was medically examined. It is further pleaded that thereafter, claim form was got filled up by the above said hospital by the concerned doctor of complainant and submitted to the opposite party No. 1 including consent form for verification and collection of IPD papers in which the Hospital UHID No.112366 dated 09.06.2018 date of admission is day care and date of discharge last but, all test done on dated 09.06.2019, result declared diagnosis as per the discharge card dated 21.06.2018 C-Prostrate. It is further pleaded that same was signed by the complainant and declaration by complainant is duly signed and attested by Dr. Bholla Singh Sidhu, MS Senior Surgeon Amritsar dated 09.06.2018 including reports, bills and test reports. It is further pleaded that total expenses incurred by the complainant in the Parvati Devi hospital is Rs.12,930/-. It is further pleaded that thereafter, the complainant felt restless and ready for obtaining second opinion and he went to Fortis Hospital Ludhiana and consulted Dr. J.S. Sekhon and the concerned doctor advised the complainant for Hormone Therapy followed by Radiation on 23.06.2018. It is further pleaded that due to serious problem life threatening disease caused to the complainant and for saving his life and for satisfaction, the complainant again went to Fortis Hospital Mohali for medical examination and getting 3rd opinion where on 28.06.2018, the concerned doctor of Fortis Hospital Mohali medically examined the complainant and diagnosed PET- CT means prostate lesion C Pelsic LNS and advised for hormonal therapy followed by Radiation for 02.07.2018, against for 02.10.2018 and prescribed the medicines and again on 02.08.2018 assessment for EBRT after 3 months. It is further pleaded that thereafter, the compliant went to "FORTIS Hospital" Mohali and got Senior Citizen Concession Card. It is further pleaded that a Board comprising of three Doctors medically examined the complainant and CA- prostate PSA-29.9 ng/m/Grade 7 was detected and the Test report dated 08.08.2018 and 07.09.2018 which clearly mentioned the Prostate Specific Antigen, Senim is 0.551 0.0-5.0 ng/ml (Tumor Marker) and 0.443-0.0 ng/ml respectively. It is further pleaded that Total expenses incurred by the complainant at Fortis Hospital Mohali is amounting to Rs.93,812/-. It is further pleaded that on 27.08.2018, the complainant visited the Chakitsa ENT Hospital and consulted the concerned doctor and after medically examination of the complainant, Dr. Karunesh Gupta, ENT Surgeon advised the complainant not to travel without sensitive hearing aid and on the advice of doctor, the complainant purchased the imported hearing machine amounting to Rs.85,000/-. It is further pleaded that Fees charged by Dr. Karnuesh Gupta for hearing machine is amounting to Rs.85,000/- from the complainant which was paid by the complainant through demand draft dated 24.09.2018. It is further pleaded that in the Fortis Hospital Mohali, the medical treatment for Radiation Therapy was very expensive and was paid out of the pocket of the complainant. It is further pleaded that due to that reason, the complainant shifted to the Capitol Hospital Jalandhar. It is further submitted that thereafter, the complainant went for Treatment at Capitol Hospital Jalandhar, where, the complainant contacted the Mediclaim Insurance Dealing hand corporate sector Ms. Balpreet Kaur and handed over to her (1) TRUS GUIDED BIUPSY (2) PHOTOCOPY OF TPA ID CARD NO.0220010011499401 valid upto 06.03.2019 (3) Aadhaar Card (4) PAN Card and other documents including Urinary Problem reports of capitol Hospital. It is further pleaded that the Mail has been sent by Vipul Med Corp Insurance TPA Private Ltd., 515, Udyog Vihar Phase 5 Gurgaon, Haryana to head office of the Insurance Company. It is further pleaded that OP No. 1 issued a letter to the Capitol Hospital on 08.10.2018 for cashless facility for the complainant and demanded the concerned documents like treating doctor's note mentioning since when the patient is suffering from CA- prostrate or symptoms related to it, first prescription relation to CA-prostate, last 4 years policies copies with continuation of the current policy. It is further pleaded that thereafter, the capitol hospital filled the declaration forms of the complainant on 06.10.2018 vide date of admission, policy No. 401211501710000164 TPA Name Vipul Med Corp TPA Card No. 0220010011499401 and signed by the complainant and duly attested by the capitol hospital along with reports and requisite documents to the opposite party No. 1. It is further pleaded that on submitting the documents, the opposite party No. 1 assured the complainant that the cashless facility at that time has not been provided by the insurance company, but after discharge from the hospital the complainant will submit the claim form along with all the relevant documents including medical bills etc. to the insurance company and thereafter, the opposite parties will consider the case of the complainant. It is further pleaded that in the meanwhile the complainant afforded all the expenses from his own pocket for his treatment. It is further pleaded that on the assurance given by the opposite parties, the complainant agreed to pay all the bills to the capitol hospital from his own pocket and thereafter, Radiation started on 10.10.2018 and ended on 21.11.2018. It is further pleaded that radiation was carried out by a highly qualified technician under the supervision of Dr. Himanshu Sritvastava MBBS, DMRT DNB Consultant Radiation Oncology. It is further pleaded that being Senior Citizen and a Rotary Member, the complainant was given a rebate of Rs.37,000/- and in fact, he paid Rs.1,13,000/- only. It is further pleaded that the complainant is very sincere and not money minded. It is further pleaded that the distance of the Capitol Hospital Jalandhar from the house of complainant is far away approximately 108 Km’s and complainant in each and every Radiation Therapy hired a Taxi from Batala to Jalandhar Capitol Hospital Jalandhar and paid Rs.4,000/- as Taxi charges each day of the therapy. It is further pleaded that the treatment of the complainant was going under Medical Oncology Hormones. It is further pleaded that on 6.10.2018 declaration form filled by the hospital, clearly mentioning the facilities and medical treatment given to the complainant is day care. It is further pleaded that again after discharge from hospital, the complainant submitted his claim forms to the opposite parties on 31.01.2019 and in this regard on 26.03.2018, a letter was issued by the opposite party No. 1 to the complainant and inquired the matter pertaining to claim paper filled by policy No. 401211501710000164 dated 31.01.2019 and demanding the documents. It is further pleaded that thereafter, on 31.01.2019, the complainant submitted all the documents demanded by the opposite parties along with affidavit duly attested by the Notary Public Batala by mentioning that the complainant had not applied to any other company for insurance claim, nor from State or Central govt. It is further submitted that however, if need be you are at liberty to get the matter inquired from any source you deem fit at any time. It is further pleaded that on 10.10.2018, Capitol Hospital issued certificate to the complainant and advised for complete bed rest due to Radical Radio Therapy and Hormonal Therapy followed by Radiation. It is further pleaded that after discharge from hospital, the complainant submitted all the relevant documents including claim form on 31.01.2019 personally by handing over the same in the head office of the OP No. 2 at industrial area Mohali. It is further pleaded that Total expenses incurred by the complainant at Capitol Hospital Jalandhar is Rs.1,50,464/- and the Total expenses incurred by the complainant is Rs.5,05,206/- including Taxi Charges. It is further pleaded that on 02.05.2019, the OP No.2 issued a letter to the complainant and repudiated the claim of the complainant. It is further pleaded that to the utter surprise of the complainant, again the OP’s have repudiated the claim vide letter dated 09.09.2019 with reasons "That your claim for Hormonal Therapy to treat prostate Cancer is of OPD nature and falls under exclusion clause 4.18 of the National Medical Policy according to which outpatient department treatment is not payable, hence your claim stands closed as NO CLAIM". It is further pleaded that the observation raised by the OP’s are like day dreams and have no legs to stand. Act of the OP’s of not making payment of the amount spent by the complainant on his treatment are totally illegal, null and void, against the rules of the policy. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in services on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in services and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to make the payment of amount insured by the complainant in terms of Insurance policy immediately in terms of the Insurance policy in question along with interest @ 18% P.A. from the date of due till actual realization. It is further prayed that compensation to the tune of Rs.1,00,000/- may also be awarded to the complainant besides the amount in question on account mental agony, physical harassment and deficiency in services on the part of the opposite parties. Litigation expenses to the tune of Rs.5,000/- may also be awarded in favour of the complainant, in the interest of justice.
3. Opposite party No.1 did not appear despite the service of notice and was proceeded against exparte vide order date 04.02.2020. After that as per order of Hon’ble State Commission, Punjab, Chandigarh dated 13.10.2022 passed in Revision Petition No 58 of 2022, Sh.Ajay Dadhwal and Sh. Sumit Pathania counsels have appeared on behalf of opposite party No.2 on dated 07.11.2022 and filed their written reply alongwith vakalatnama and opposite party No.1 remained exparte vide order dated 04.02.2020.
4. The opposite party No.2 appeared through counsels and contested the complaint and filed their written reply stating therein that the complainant obtained Health Insurance Policy from the OP No.2 vide policy No.401211501710000164 valid bearing policy for the period from 07.03.2018 to 06.03.2019 and the complainant is insured for a sum of Rs.5,00,000/- and it is a joint Insurance policy period of more than 15 years or that it was got renewed by the complainant and is continuing at the time of filing the present complaint. It is pleaded that it is wrong that only policy schedule was supplied to complainant or that no terms and conditions were supplied to the complainant. It is further wrong that after discharge from hospital, the complainant submitted all the relevant documents including claim form on 31.01.2019 personally by handing over the same in the head office of the OP No. 2 at industrial area Mohali. It is further pleaded that it is further wrong that Total expenses incurred by the complainant at Capitol Hospital Jalandhar is Rs.1,50,464/ or Total expenses incurred by the complainant is Rs.5,05,206/ including Taxi Charges. It is further pleaded that as per terms and conditions of the insurance policy the claim of the complainant was not maintainable for the reasons "That your claim for Hormonal Therapy to treat prostate Cancer is of OPD nature and falls under exclusion clause 4.18 of the National Medical Policy according to which outpatient department treatment is not payable, hence your claim stands closed as NO CLAIM". It is further pleaded that it is wrong that the act of the opposite parties of not making payment of the amount spent by the complainant on his treatment are totally illegal, null and void, against the rules of the policy.
On merits, the opposite party denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Learned counsel for the complainant has tendered into evidence affidavit of Baldev Raj Prashar, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-128.
6. Learned counsels for the opposite party No.2 have tendered into evidence affidavit of Ms.Sunita Saini, (Divisional Manager of National Ins. Co. Ltd., Pathankot) as Ex.OPW-2/A alongwith other document as Ex.OP-2/1.
7. Rejoinder not filed by the complainant.
8. Written arguments filed by the opposite party No.2 but not filed by the complainant.
9. Counsel for the complainant has argued that complainant had purchased health policy from the opposite party No.2 and the said policy is being purchased for the last more than 15 years. It is further argued that complainant had suffered problem of uncontrolled passing of urine and was taken to Smt.Parvati Devi Hospital Amritsar and was diagnosed to be suffering from Ca-prostate and tumor in urinary bladder. On 09.06.2018 complainant was admitted in Smt.Parvati Hospital Amritsar and medically examined. Thereafter, claim form filled by the concerned hospital and submitted to opposite party No.1 for verification and there was total expenditure of Rs.12,930/-. It is further argued that thereafter complainant felt restlessness and obtained second opinion form Fortis Hospital Ludhiana and was advised hormonal therapy by the doctor followed by radiation. It is further argued that complainant again went to Fortis Hospital Mohali for obtaining third opinion and was diagnosed PET-CT means Prostate lesion C Pelsic LNs and was again advised hormonal therapy with radiation for 02.07.2018 and was prescribed medicines for three months. It is further argued that complainant was also examined by board of doctors and complainant had spent amount of Rs.93,812/- on his treatment at Fortis Hospital Mohali. It is further argued that on 27.08.2018 complainant again visited ENT Hospital Chakitsa and consulted with the concerned doctor and on the advise of the doctor complainant had to purchase hearing aid worth Rs.85,000/- and since treatment at Fortis Hospital Mohali the medical treatment for radiation therapy was very expensive and as such complainant was shifted to Capitol Hospital Jalandhar and at Capitol Hospital Jalandhar complainant contacted the mediclaim insurance dealing hand corporate sector Ms. Balpreet Kaur and handed over to her required documents. The opposite party wrote a letter to the Capitol Hospital Jalandhar on 08.10.2018 and sought clarification and in reply to the letter the Capitol Hospital Jalandhar gave all the clarifications. Thereafter, opposite parties promised cashless facility but later on same was not provided by the opposite party No.2 and complainant had to pay the bills from his own pocket. It is further argued that for the radiation which started from 10.10.2018 to 21.11.2018 the complainant had spent Rs.1,13,000/- and complainant had to hire the taxi on pay of Rs.4,000/- per day for visiting Capitol Hospital Jalandhar. Complainant had submitted all the documents with the opposite parties but the opposite parties repudiated the claim of the complainant on the ground "That your claim for Hormonal Therapy to treat prostate Cancer is of OPD nature and falls under exclusion clause 4.18 of the National Medical Policy according to which outpatient department treatment is not payable, hence your claim stands closed as NO CLAIM". The act of the opposite parties amounts to deficiency in service and complainant is entitled to reimbursement of expenses as detailed in the complaint.
10. Opposite party No.1 remained exparte.
11. On the other hand counsel for the opposite party No.2 has argued that it is admitted fact that complainant has been purchasing health policy for the last 15 years. However, it is not admitted that complainant was not supplied terms and conditions of the policy. It is further argued by the counsel for the opposite party No.2 that as per policy terms and conditions the claim of the complainant was not payable for Hormonal Therapy to treat prostate Cancer as the same is of OPD nature and since the terms and conditions were duly supplied to the complainant whenever he purchased and renewed the policy and as such complainant is bound by terms and conditions copy of which Ex.OP-2/1 and accordingly claim was rightly repudiated and the complaint is liable to be dismissed.
12. We have heard the Ld. counsels for the complainant and opposite party No.2.
13. To prove his case counsel for the complainant has placed on record affidavit of complainant Ex.C1, copy of policy Ex.C2, copy of claim form Ex.C3 to Ex.C6, copies of prescription and treatment record Ex.C7 and Ex.C8, copy of report of Lab. Ex.C9, copy of claim form Ex.C10, copies of treatment record of Smt.Parvati Devi Hospital Amritsar Ex.C11 to Ex.C28, copy of claim form Ex.C29 and Ex.C30, copy of second opinion Ex.C31, copy of declaration form Ex.C32, copy of report of Lab. Ex.C33 to Ex.C40, copy of claim form Ex.C41 to Ex.C46, copy of report of whole body PET-CT Scan Ex.C47, copies of bills and treatment record Ex.C48 to Ex.C119, copies of E-mails and representations Ex.C120 to Ex.C126, copy of repudiation letter Ex.C127 whereas counsel for the opposite party No.2 has placed on record affidavit of Ms.Sunita Saini Divisional Manager Ex.OPW-2/A, copy of National Mediclaim Policy terms and conditions Ex.OP-2/1.
14. It is admitted fact that complainant had obtained health policy from the opposite party No.2 valid from 07.03.2018 to 06.03.2019 with sum assured of Rs.5,00,000/-. It is further admitted fact that complainant had been purchasing the health policy from opposite party No.2 for the last 15 years. It is further admitted fact that complainant remained under treatment for Ca-Prostate and Tumor in urinary bladder at Smt.Parvati Devi Hospital Amritsar from 09.06.2018 to 21.06.2018 and had spent amount of Rs.12,930/-. It is further admitted fact that complainant had taken treatment from Fortis Hospital Ludhiana thereafter Capitol Hospital Jalandhar and in this way complainant has been spending amount on his treatment. It is further admitted fact that claim lodged by the complainant has been repudiated by the opposite party No.2 vide letter Ex.C127 on the basis of exclusion clause No.4.18. The only dispute for adjudication before this Commission is whether the repudiation of the claim on the basis of exclusion clause no.4.18 is valid or not.
15. We have gone through the policy document Ex.C2 consisting of two pages. The perusal of said document shows that it is nowhere mentioned in the said document that mediclaim policy terms and conditions are attached with these two pages. Meaning thereby it is clear that complainant was issued only policy schedule consisting of two pages i.e. Ex.C2 and terms and conditions Ex.Op-2/1 were never part of the policy schedule. Moreover, perusal of Ex.C2 shows that it is a computer generated document whereas the terms and conditions document Ex.OP-2/1 is stereo type printed document consisting of number thirteen pages starting from serial No.1 to 13 and opposite party No.2 failed to explain and prove on record that the terms and conditions Ex.OP-2/1 were supplied or explained to the complainant and as such we are of the view that since the terms as now claimed by the opposite party No.2 were never supplied to the complainant and also were not explained to the complainant and as such repudiation of the claim vide letter Ex.C127 by placing reliance upon the exclusion clause No.4.18 of Ex.OP-2/1 is totally unjustified.
16. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon'ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
"It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy, Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich".
From the above discussion we hold that repudiation of claim by opposite party by relying upon the terms and condition which were not supplied to the complainant amounts to deficiency in service on the part of opposite party.
17. We have further reliance upon judgment of Hon'ble Supreme Court of India reported in 2000(1) Apex Court Journal 398 in Civil Appeal No.6895 of 1997. D/d. 22.2.2000 in case titled as M/s. Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd. as per which Hon'ble Supreme Court of India has held as under:-
"Consumer Dispute - National Commission set aside the decision of State Commission in appeal - National Commission based its decision on the exclusion clause in contract and "New Plea" in appeal - Held, the exclusion clause was neither a part of the contract of insurance nor disclosed about the clause to appellant, respondent cannot claim benefit of exclusion clause - Respondent pleaded before the State Commission that the property damaged was not covered under the insurance policy - This plea was given a go-bye before National Commission and a new plea taken up that terms and conditions of insurance policy were violated by the appellant by using used kiln furniture - Finding of National Commission not tenable in law - Appeal allowed". (Paras 5,6,9,10 and 11).
18. We have also reliance upon judgment of Hon'ble Supreme Court of India reported in 2020(1) Apex Court Judgments 638 (S.C.) in Civil Appeal No.10398 of 2011, D/04.02.2020 in case titled as New India Assurance Co. Ltd. & Ors. Vs. Paresh Mohanlal Parmar as per which Hon'ble Supreme Court of India has held as under:-
"Consumer Protection Act, 1986, S.12 - Insurance claim - Non- communication of terms and conditions of insurance policy to insured - Not open to insurer to rely upon exclusionary clause of policy". (Paras 10 & 11).
19. As such from the above discussion and case law cited above we have no hesitation in holding that since the terms and conditions were never supplied to the complainant and as such complainant cannot made be made bound with the said conditions and repudiation of the claim on the basis of said exclusion clause is also unjustified. As far as the plea of opposite parties regarding treatment under taken by the complainant i.e. hormonal therapy we are of the view that it is prerogative of the patient to obtain best and cheap treatment which is available in the best hospital and in the present case also complainant had taken opinions from three different hospitals and had under taken hormonal therapy for the treatment prostate cancer and had incurred minimum expenses. Accordingly, repudiation of the claim by declaring hormonal therapy being of OPD in nature and by relying upon some circular of CMD and exclusion clause is totally unjustified and is not acceptable.
20. Accordingly, the present complaint is partly allowed and opposite party No.2 is directed to settle and pay the claim to the complainant as admissible as per the policy document Ex.C2 within 30 days from the date of receipt of copy of this order. However, it is made clear that if claim is not settled and paid within 30 days, the entire payable amount shall carry interest @ 9% P.A. from the date of filing of the complaint till realization. Complainant is also definitely entitled to compensation of Rs.10,000/- for mental tension, agony and harassment and Rs.5,000/- as cost of litigation.
21. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
22. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Nov. 03, 2023 Member.
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