IMPORTANT POINT
Follow-up is not under patients’ control.

Dr. S.M. Kantikar, Member—The complainant, Smt. Rasula Begum Chowdhury was suffering from Macular Degeneration (AMD) with Visual Disorder and was required to take Lucentis injection from Norvartis India Limited, OP 1. The expenses of treatment were covered under the insurance policy issued by the Oriental Insurance Company Limited, OP 2. The complainant took four injections, whereas, the cost of fourth dose, amounting to Rs.71,412/-, was repudiated on the ground of failure of monthly follow-up.

2. Therefore, alleging deficiency and unfair trade practice, the complainant filed a complaint before the District Forum, Unit I, Kolkata. The District Forum, Unit I, Kolkata allowed the complaint and directed the OPs to pay a sum of Rs. 71,412/- to the complainant for the cost of fourth dose medicine, with interest @ 9% p.a. from the date of repudiation, till the date of realization. The OPs were further directed to pay compensation of Rs.65,000/- for the harassment and mental agony caused to the complainant and were also directed to pay litigation costs in the sum of Rs.10,000/-. Both the OPs were also directed to pay a sum of Rs. 2,00,000/- to the complainant and Rs. 5,00,000 in favour of Consumer Welfare fund, Govt. of West Bengal as punitive damages as per provision laid down u/s 2(1) (r) of the Consumer Protection Act, 1986 for carrying on unfair trade practice.

3. Aggrieved by the order of District Forum, OP 1, Novartis India Limited filed first appeal before the State Commission. The State Commission partly allowed the appeal and modified the order of District Forum to the extent that the imposition of punitive damages was reduced from Rs.2,00,000/- (Rupees two lakhs only) payable to the complainant to Rs.50,000/- (Rupees Fifty thousand only) and Rs.5,00,000/-, payable to the Consumer Welfare Fund, Government of West Bengal to Rs.1,00,000/- (Rupees One Lakh only). The other portion of the impugned judgment remained unaltered.

4. Against the order of State Commission, OP 1 filed this revision petition.

5. We have heard the learned counsel for the parties and authorized representative of the complainant. Learned counsel for the petitioner argued that there is no relationship between OP 1 and the complainant. Novartis was only the supplier of medicine and is nowhere concerned with the reimbursement. Sanctioning of claim was the responsibility of insurance company. Therefore, Novartis/Petitioner is not liable in the instant case. .

6. Learned counsel for the OP 2, insurance company, Mr. Vinod Trisal, submitted that the complainant violated the terms and conditions of the insurance policy.

7. We have perused the evidence on record and several email correspondence exchanged between the complainant and the OPs. As per the agreement between the parties, it was a mandatory provision to maintain the follow-up, on monthly basis, but the complainant did not follow the schedule in monthly follow-up card. The complainant followed on 8.1.2009 and thereafter on 23.2.2009 for the fourth injection of Lucentis. Therefore, there was a gap of 46 days’ between two follow ups. We are not convinced with the arguments from both the OPs.

8. The District Forum decided the case ex parte against Novartis India Limited. We have perused the medical certificate issued by Dr. P. K. Chatterjee, Nightingale Hospital, Kolkata, wherein it is stated that the complainant was under his follow-up, on monthly basis; and he was monitoring her vision and he has rendered in that month’s follow-up. Therefore, the complainant cannot be faulted here. It is quite surprising that the insurance company, OP 2 repudiated the claim on such flimsy ground. The terms and conditions are not suitable, those are unconscionable in the instant case. It should be borne in mind that the follow-up is not under patients’ control. It completely depends upon doctor’s availability. Even the word “monthly” is very vague, because ‘monthly’ does not specify either calendar month or any exact date.

9. A