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Judgment
Dr. S. M. Kantikar, Presiding Member
This order shall decide both the Revision Petitions filed under Section 21 of the Consumer Protection Act, 1986 (in short “the Act”) against the common order dated 11.06.2018 in R.P. 246/2017 of the State Commission.
The facts are drawn from R.P. No.1890/2018. Accordingly, Dr. Kaliprasad Dutta is the Complainant, Dum Dum Municipal Specialised Hospital is the OP-1 (for short, ‘Dum Dum Hospital’), Dr. Samit Kumar Chatterjee is the OP-2, the Star Health & Allied Ins. Co. Ltd. is the OP-3 (for short, ‘Insurance Co.’), the Apollo Gleneagles Hospital is the OP – 6 and its Institute of Gastro Science is the OP-7.
The Issue involved is whether two Complaints are maintainable for one Cause of action.
Both the Petitioners are original Complainants. Both have filed individual complaint before two different the District Forum. One Complaint CC/97/2017 was filed by Dr.Kaliprasad Datta at Kolkata-I. Another complaint CC/216/2017 was filed by the patient Mrs. Nadita Datta w/o Dr. Kaliprasad at Barasat, which was subsequently transferred to District Forum at Kolkata- I. The Opposite Parties filed an application before the District Forum to stop the proceedings in C.C.216/2017, but the District Forum dismissed the application.
Being aggrieved by the dismissal, the Dum Dum Hospital and Dr. Samir Kr. Chatterjee filed the Revision Petition No. 246/2017 before the State Commission, wherein following order was passed:
“Heard both the sides. Considered the respective submissions and perused the materials on record.
Materials on record reveal that the Complaint Case bearing No. C.C./95/2016 has been filed on 11.04.2016 by the husband of Smt. Nandita Dutta and Complaint Case No. RBT/C.C./216/16 has been filed on 13.05.2016 by Smt. Nandita Dutta herself for the identical cause of action being refusal by the Insurance Company concerned to reimburse the medical expenses. The materials on record also reveal that the parties of both the cases are common excepting the sequence of position of the parties. The said materials further reveal that the prayers in both the Complaint Cases are same excepting the difference in amount of the relief claimed.
The foregoing evidence on records indicate that the two Complaint cases as referred to above have been filed on the selfsame Cause of action, among the common parties and with same kind of prayer.
The foregoing facts, evidence on records and the decisions of the Hon'ble National Commission lead to the conclusion that second Complaint Case bearing no.RBT/ C.C./216/16 which has been filed on 13.5.2016 on the selfsame Cause or action after filing the first Complaint Case bearing No. C.C./95/2016 deserves dismissal.
Consequently, the instant Revision Case is allowed, the impugned order is set aside and the second Complaint Case being No.RBT/ C.C. /216/2016 stands dismissed.”
Being aggrieved, both the Complainants filed instant two separate Revision Petitions.
We have heard the learned Counsel for the parties. Perused both the Complaints and Orders of the District Forum & the State Commission.
The Complainants in both the complaints alleged that the medical reimbursement claim of Rs. 24,097/- under Mediclassic insurance policy was rejected by the Insurance Company. It was due to the alleged wrong diagnosis of Dr. Samir Kr. Chatterjee and because of vested interest of the hospital for unfair trade practices.
We further note that Dr. Kaliprasad Datta (husband of Nandita) obtained Medi-classic insurance policy covering hospitalization benefits for his wife and two daughters for total cover of Rs.1,50,000/-. The claim for Nandita’s treatment expenses about Rs. 24,079 was rejected by the insurance company on the ground of pre-existing disease. Therefore he filed Complaint - CC No. 97/2016 against the Insurance Co., hospitals and the doctors and prayed Rs. 15,24,079/- as compensation. The prayer is reproduced as below:
1.
Reimbursable medical expenses for the
insured person (wife) 1
Rs. 24,079/-/-
2.
Loss of Social prestige of the Consumer Complainant according to his status. Lump sum
Rs. 5,00,000/-
3.
Loss of prestige of Consumer Complaint before family members and friends according to his status. Lump
sum
Rs. 3,00,000/-
4.
Mental agonies of Consumer Complainant according to his
status. Lump sum
Rs. 3,00,000/-
5.
Unfair trade practice of the Opp. Parties No.1 & 2
Rs. 3,00,000/-
6.
Deficiencies in Service of the Opp. Parties No.1 & 2
Rs. 1,00,000/-
Total
Rs.15,24,079/-
The another Complaint CC No. 214 of 2016 was filed by Nandita Datta and claimed Rs. 19,24,079/- from the Dum Dum Hospital, Dr. Samit Kumar Chatterjee and others. The prayer is reproduced as below:
For deficiencies in rendering medical services and sufferings for 9 (Nine) days (10.01.2015
to 18.10.2015); both the dates
includes @Rs.1,00,000/- per day Rs. 9,00,000/-
2.
For 9 days deprivation of the enjoyment of her life
Rs. 9,00,000/-
3.
Misc. costs incurred
Rs. 1,00,000/-
4.
Cost of treatments
Rs. 24,079/-
Total
Rs.19,24,079/-
On careful perusal of the medical record that Nandita Dutta was admitted in Dum Dum Hospital on 10.10.2015 with abdominal pain. Her past history as stated by her husband that she was suffering from Diabetes Mellitus and Hypertension for more than 10-12 years. The Blood Sugar levels were Fasting 389 mg% and Post Prandial (PP) 478 mg%. On 13.10.2015 the patient’s husband requested to discharge patient because of non-availability of sanction of benefit by the Insurance Co. and the Patient was discharged AMA on 14.10.2015. She continued same treatment for 3 days till 18.10.2015, without any symptoms. The final diagnosis was pain in abdomen, T2DM HTN. The case summary is reproduced as:
“This 53 year old female patient K/C/O HTN and T2DM, was admitted here with complains of paid abdomen, nausea, loss of appetite and vertigo. Patient was treated conservatively and all relevant investigations were done and reports revealed anaemia and hypokalemia. Now patient party want to take the patient AGAINST MEDICAL ORDER.”
The question to deal with whether the Insurance Co. was justified in repudiating the hospitalisation claim. On careful perusal of the repudiation letter, it is evident that the patient was known hypertensive and highly diabetic for the last 10 to 12 years. The repudiation letter is reproduced as below:
“We have processed the claim relating to the above insured patient seeking reimbursement of hospitalization expenses for treatment of pain abdomen diabetes mellitus hypertension. It is observed from the history sheet dated 10/10/2015 of the above hospital furnished during our internal verification the Insured patient is a known case of diabetes mellitus for the past 12 years hypertension for the past 15 years and is diagnosed with fatty lever disease in 2009 which are prior to inception of medical insurance policy. As per Exclusion No.1 of the policy issued to you, the Company is not liable to make any payment in respect of expenses for treatment of the pre-existing disease condition until 48 months of the continuous coverage has elapsed since inception of the policy. We are therefore unable to settle your claim under the above policy and we hereby repudiate your claim. It is brought to your attention that as per the Contract of Insurance, the medical history/health details of the person(s) proposed for insurance are to be disclosed in the proposal form at the time of inception of the policy. Since you have not disclosed the above mentioned pre-existing disease of the insured person in the proposal form at the time of inception of the policy, these are now incorporated in your policy as pre-existing disease/condition by passing endorsement.”
Therefore, the Insurance Co. was justified to reject the hospital claim of Rs. 24,097/- on the ground of pre-existing disease, which was material concealment in the instant case. We would like to rely upon the judgment in Civil Appeal “ Reliance Life Insurance Co. Ltd. vs. Rekhaben Nareshbhai Rathod [(2019) 6 SCC 175] , the Hon’ble Supreme Court has extensively dealt with the insured’s non-disclosure obligation.
Now adverting to the medical negligence in the instant case, it is pertinent to note that the patient was treated conservatively in Dum Dum Hospital, but the patient herself got discharged AMA from the hospital. Thereafter, the patient took OPD treatment at Apollo Gleneagles Hospital Kolkata in Institute of Gastroscience, wherein same previous treatment was given. CT scan and USG done outside revealed no significant abnormality and nothing is on record to prove deterioration of her health. Therefore, in our view, the medical negligence is not attributable to either the Dum Dum Hospital or the treating doctors. Though both the Complainants have not raised any allegations against the Apollo Hospital and its Gastro Science Institute, they were unnecessarily impleaded in this litigation.
To conclude, in our considered view, the repudiation of Insurance co. for hospitalisation claim on the ground of pre-existing disease (DM & HT) is justified. The dispute arose for non-payment of the hospitalisation expenses and prima-facie, the case of the medical negligence was not made out. Thus, filing of two separate complaints, one by husband and the other by the wife for same cause of action is nothing but multiplicity of proceedings. Such complaints with inflated claims can cause disincentive to the doctors / hospitals. It should be borne in mind that, the Act, 1986 (now 2019) being a beneficial legislation casts equal to create responsibility to the complainants in alleged medical negligence case.
Based on the foregoing discussion, the Revision Petitions are dismissed and consequently, the separate Complaints filed by both the Complainants / Petitioners are dismissed. There shall be no Order as to costs.