{"id":41654,"date":"2011-03-18T00:00:00","date_gmt":"2011-03-17T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/aditya-vs-united-on-18-march-2011"},"modified":"2016-10-28T09:32:30","modified_gmt":"2016-10-28T04:02:30","slug":"aditya-vs-united-on-18-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/aditya-vs-united-on-18-march-2011","title":{"rendered":"Aditya vs United on 18 March, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Aditya vs United on 18 March, 2011<\/div>\n
Author: Jayant Patel,&Nbsp;Ms.Justice B.M.Trivedi,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/10797\/2010\t 9\/ 9\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 10797 of 2010\n \n\n \n\n\n \n\n \n\n\n \n\n \n=========================================================\n\n\n \n\nADITYA\nMULTI-SPECIALITY HOSPITAL THROUGH NARESH MALHOTRA - Petitioner(s)\n \n\nVersus\n \n\nUNITED\nINDIA INSURANCE CO LTD THROUGH REGIONAL MANAGER & 3 -\nRespondent(s)\n \n\n=========================================================\n \nAppearance : \nMR\nANSHIN H DESAI for\nPetitioner(s) : 1, \nNOTICE SERVED BY DS for Respondent(s) : 1 -\n4. \nMR VIBHUTI NANAVATI for Respondent(s) : 1 -\n4. \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE JAYANT PATEL\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nand\n\t\t\n\t\n\t \n\t\t \n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMS.JUSTICE B.M.TRIVEDI\n\t\t\n\t\n\n \n\nDate\n: 18\/03\/2011 \n\n \n\n \nORAL\nORDER<\/pre>\n
(Per
\n: HONOURABLE MR.JUSTICE JAYANT PATEL)<\/p>\n
The
\n\tpresent petition is preferred for appropriate writ to quash and set
\n\taside the order dated 10.08.2010 passed by the respondent insurance
\n\tcompany and it is prayed by the petitioner to declare that the
\n\timpugned decision taken by the respondent insurance company of not
\n\tgiving medical reimbursement to the patients who may take the
\n\ttreatment as illegal.\n<\/p>\n
We
\n\thave heard learned counsel Mr.Mihir Joshi with Mr. Desai for the
\n\tpetitioner and Mr.S.N.Shelat, learned counsel with Mr.Nanavati for
\n\tthe respondent insurance company.\n<\/p>\n
It
\n\tis an undisputed position that the petitioner is running the
\n\thospital and respondent insurance company is rendering the services
\n\tin the field of insurance for indemnifying the expenses which may be
\n\tincurred by the insured for treatment. The present petition is not
\n\tpreferred by any insured contending that by the impugned action of
\n\tthe insurance company, any conditions of contract is breached or
\n\tthat there is any breach of the statutory provisions or obligation
\n\tcast upon the insurance company has not been properly discharged.
\n\tThe present petition is by one of the hospital which is desirous to
\n\tsee that its name may not be de-panelled or excluded for the purpose
\n\tof consideration of the claim of the insured who may have taken
\n\ttreatment with it. It is in this light of the facts and
\n\tcircumstances, the contentions are to be considered.\n<\/p>\n
We
\n\tmay record that earlier, the action was taken for de-panelling the
\n\tpetitioner but as the same was in breach of the principles of
\n\tnatural justice, the challenge was made before this Court in the
\n\tproceedings of SCA No.3983\/10 and allied matters and this Court
\n\thaving found that the action was in breach of the principles of
\n\tnatural justice, set aside the decision of the insurance company by
\n\tits judgement dated 14.05.2010 by observing thus –\n<\/p>\n
“In
\nthe result, all the petitions are allowed.  The impugned order at
\nAnnexure A  in so far as  the petitioners are concerned is quashed
\nand set aside.  Having done that, we at the same time cannot  shut
\nour eyes to the rising tendency  of medical malpractices in insurance
\nclaims.   It will, therefore,  be open for the respondents to take  a
\nfresh decision after giving an opportunity to the petitioners to meet
\nwith the allegations  of irregularities and malpractices  against
\nthem.  For the said purpose, if the respondents so desire to proceed
\nfurther,   show cause notice shall be issued to the concerned
\nhospitals within a period of two weeks from today and after
\nconsidering the representations of the petitioners, if made,  pass
\nappropriate order  latest by 15th August
\n2010.  If such  show cause notices are issued within the time
\npermitted,  until final decision as mentioned  above is taken, the
\npetitioners shall not insist on acceptance of mediclaims of cashless
\nor reimbursement for the treatment to the patients given after
\n1.4.10,  which shall be governed by the ultimate  outcome of  such
\nexercise.  However, it is clarified that for the treatment to the
\npatients  given   prior to 1.4.10, the respondents Insurance
\nCompanies  shall continue to process the mediclaim and pay the same
\nas found admissible under the Rules.  It will also be open for the
\nInsurance Companies, if so found appropriate, to require the
\npetitioners to  take such remedial measures as found necessary.”\n<\/p>\n
It
\n\tappears that thereafter, show cause notice was given and the same
\n\twas replied by the petitioner.  After reply, the matter came to be
\n\tconsidered by the steering committee and the matter was considered
\n\tand so far as the petitioner herein is concerned, the finding
\n\trecorded is thus –\n<\/p>\n
“1.\n<\/p>\n
 Aditya Multispeciality Hospitality:  All the TPAs have gone through
\nthe replies given by the hospital against their observations made
\nduring the investigations. The committee has interacted with the
\nconcerned TPA and unanimously found that the replies given are not
\nsatisfactory and hence the hospital continues to be in the declined
\nlist.”\n<\/p>\n
The
\n\tpertinent aspect is that the allegation against the petitioner
\n\therein as it appears from the material produced by the insurance
\n\tcompany is that the claims together with the bills which were
\n\tsubmitted, upon a detailed scrutiny by recording statement of the
\n\tpatients, it was found that they were not genuine.  In some cases,
\n\tthe relevant entries were not available for the examination of the
\n\tlaboratory, etc., of the patients concerned.  In some cases, the
\n\tpatients declared upon the investigation by TPA that number of days
\n\tof hospitalisation were less than shown in the bills etc.  When on
\n\tthe face of this allegation, upon the investigation report of the
\n\tTPA, the explanation has also been considered and all the members of
\n\tthe committee unanimously found the explanation as not worth
\n\taccepting and maintaining, the decision for continuation of the
\n\tdeclined list, in our view would be sufficient to justify the
\n\taction.\n<\/p>\n
Even
\n\tif one has to keep in mind the larger public interest as that of the
\n\tinsurance company and also to some extent the class of insured who
\n\tare to be benefited for getting the treatment, it is hardly required
\n\tto be stated that merely because the insured is covered by the
\n\tscheme gives no warrant to the insured or to the hospital to
\n\texaggerate or to submit a non-genuine bill.  If any hospital is
\n\tfound to be a party in such an attempt and the insurance company has
\n\tfound that the bills of such hospital should not be entertained by
\n\tputting the insured at guard, such action cannot be said to be
\n\tarbitrary on the ground as sought to be canvassed.\n<\/p>\n
The
\n\tattempt was made by Mr.Joshi, learned counsel appearing for the
\n\tpetitioner by contending that there was no power of blacklisting and
\n\ttherefore, the order could be said as without their being any
\n\tauthority.\n<\/p>\n
In
\n\tour view, it is not a matter of tracing the source of power, but is
\n\ta matter where one has to consider the reasonableness of an action
\n\tof dealing in the business of insurance for the medical claim
\n\tkeeping in view the interest of the insured who are to get the
\n\ttreatment.  When there is no privity of contract between the insurer
\n\tand the petitioner company, it is open for the insurance company on
\n\ta reasonable material to arrive at a decision that they may not be
\n\tentertaining the claim if the insured has taken treatment.  We may
\n\tagain reiterate that we are not examining the question of
\n\tadmissibility of the claim at the instance of the insured, but the
\n\tonly issue in the present matter is the assertion of the right of a
\n\thospital who is rendering medical facility and the bill of such
\n\tmedical facility may be admissible in the medical claim.  Therefore,
\n\tthe contention that there is no source of power cannot be accepted.\n<\/p>\n
It
\n\twas next contended by Mr.Joshi, learned counsel that even if it is
\n\tconsidered that there is any power, then there cannot be any
\n\tde-panelling for indefinite period.\n<\/p>\n
In
\n\tour view, so long as the ban is not lifted, it may continue but that
\n\tcannot be read as a ban for all time to come if in a given case
\n\tultimately in future, the petitioner satisfies the requirement
\n\thaving found upto the expectation of the insurance company, their
\n\tclaims may be examined in future.  But the action cannot be tested
\n\ton the ground that since the period has not been mentioned, it would
\n\tbe bad in law more particularly when it is taken keeping in view the
\n\tlarger public interest in the business of insurance.\n<\/p>\n
It
\n\twas next contended by the learned counsel for the petitioner that
\n\tthe action has to meet with the test of Article 14 of the
\n\tConstitution. It is in breach of the principles of natural justice,
\n\thence would be illegal, therefore, this Court may interfere. In
\n\tfurtherance to the said submission, it was contended that no
\n\topportunity of hearing was given.\n<\/p>\n
In
\n\tour view, the principles of natural justice cannot be injected by
\n\tway of a straight jacket formula.  It may vary from facts to facts.
\n\tIn a matter like this, if the show cause notice has been given and
\n\tthe reply is considered, it would be sufficient compliance to the
\n\tprinciples of natural justice and it cannot be said that the action
\n\tis in breach of the principles of natural justice.\n<\/p>\n
The
\n\tattempt was made by Mr.Joshi to contend that there is complete
\n\tnon-application of mind inasmuch as the reasons must be reflected in
\n\tthe form of the order and further, for two hospitals, relaxation has
\n\tbeen given, whereas in the case of the petitioner similar treatment
\n\thas not been given and therefore, it would not meet with the test of
\n\tArticle 14 of the Constitution.\n<\/p>\n
Prima
\n\tfacie, the contention may appear to be attractive, but upon a close
\n\tscrutiny, it appears that it is not a matter for exercise of power
\n\tof testing a lis between the parties, but is a matter of dealing in
\n\tbusiness with a hospital for the purpose of consideration of the
\n\tclaim.  The freedom is available to the hospital to admit the
\n\tpatient and not to admit the patient or to render the treatment or
\n\tnot to render the treatment.  It has a complete freedom in the
\n\tbusiness of medical profession so such freedom equally would be
\n\tavailable to the insurance company while dealing in the business of
\n\tinsurance.  There is no contract or inter se binding rights between
\n\tthe insurance company and the hospital concerned, who is the
\n\tpetitioner herein.\n<\/p>\n
Therefore,
\n\tit is in that light of the situation, the alleged challenge for
\n\tapplication of mind is to be considered and examined.  As we have
\n\trecorded earlier, there are materials on record  which may justify
\n\tthe decision.  This court cannot on sit in appeal over the decision
\n\tnor would enter into the arena of sufficiency of the material unlike
\n\texamining the other administrative order.  Further, the decision
\n\tcommunicated is supported by the minutes of meeting and if the
\n\tminutes of meeting are considered with the material produced
\n\ttogether with the affidavit in reply, in our view, it cannot be said
\n\tthat there is non-application of mind on the ground as sought to be
\n\tcanvassed. We may record that while testing the action taken in
\n\tlarger public interest, in the field of business with the third
\n\tparty with whom the insurance company is not having any privity of
\n\tcontract and it is a dealing with the hospitals generally, such a
\n\tmicroscopic examination of the decision as sought to be canvassed
\n\tcannot be accepted.\n<\/p>\n
We
\n\tmay refer to the decision of the Apex Court in the case of Gronsons
\n\tPharmaceuticals (P) Ltd. v. State of U.P. and others reported in AIR
\n\t2001 SC 3707 had observed at para 2 thus –\n<\/p>\n
“Learned
\ncounsel appearing for the appellant, urged that seeing the nature and
\nseriousness of the order passed against the appellant, the respondent
\nought to have supplied all the materials on the basis of which the
\ncharges contained in the show cause notice were based along with show
\ncause notice and in the absence of supply of materials, the order
\nimpugned is against the principles of natural justice. We do not find
\nany merit in this contention. Admittedly, the appellant has only
\ncontractual relationship with the State Government and the said
\nrelationship is not governed by any statutory Rules. There is no
\nstatutory rule which requires that an approved contractor cannot be
\nblacklisted without giving an opportunity of show cause. It is true
\nthat an order blacklisting an approved contractor results in civil
\nconsequences and in such a situation in the absence of statutory
\nrules, the only requirement of law while passing such an order was to
\nobserve the principle of audi alteram partem which is one of the
\nfacets of the principles of natural justice. The contention that it
\nwas incumbent upon the respondent to have supplied the material on
\nthe basis of which the charges against the appellant were based was
\nnot the requirement of principle of audi alteram partem. It was
\nsufficient requirement of law that an opportunity of show cause was
\ngiven to the appellant before it was blacklisted. It is not disputed
\nthat in the present case, the appellant was given an opportunity to
\nshow cause and he did reply to the show cause which was duly
\nconsidered by the State Government. We are, therefore, of the view
\nthat that the procedure adopted by the respondent while blacklisting
\nthe appellant was in conformity with the principles of natural
\njustice.”\n<\/p>\n
In
\n\tthe another decision of the Apex Court in th case of Krishnan
\n\tKakkanth v. Govt. of Kerala and others reported at AIR 1997 SC 128,
\n\twhile deciding the legality and validity of the circular of the
\n\tGovernment, the Apex Court had observed at paras 29 and 30 as under:\n<\/p>\n
“29.\n<\/p>\n
But in the instant case, no fundamental right guaranteed under
\nArticle 19(1)(g) of the Constitution has been infringed. Hence,
\nquestion of invalidity on account of imposition of reasonable
\nrestriction on the exercise of such right by executive order instead
\nby a statute does not arise in the facts of the case.\n<\/p>\n
30.
\nIt may be indicated that although a citizen has a fundamental right
\nto carry on a trade or business, he has no fundamental right to
\ninsist upon the Government or any other individual for doing business
\nwith him. Any Government or an individual has got a right to enter
\ninto contract with a particular person or to determine person or
\npersons with whom he or it will deal.”\n<\/p>\n
If
\n\tthe facts of the present case are considered, we do not find that
\n\tthere is any breach of any right under Article 19(1)(g) of the
\n\tConstitution as sought to be canvassed.\n<\/p>\n
In
\n\tthe result, the petition is meritless. Hence, dismissed.
\n\tConsidering the facts and circumstances, no order as to costs.\n<\/p>\n
 (JAYANT
\nPATEL, J.)<\/p>\n
 (Ms.\n<\/p>\n
B.M. TRIVEDI, J.)<\/p>\n
*bjoy<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Aditya vs United on 18 March, 2011 Author: Jayant Patel,&Nbsp;Ms.Justice B.M.Trivedi,&Nbsp; Gujarat High Court Case Information System Print SCA\/10797\/2010 9\/ 9 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10797 of 2010 ========================================================= ADITYA MULTI-SPECIALITY HOSPITAL THROUGH NARESH MALHOTRA – Petitioner(s) Versus UNITED INDIA INSURANCE CO LTD […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-41654","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nAditya vs United on 18 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/aditya-vs-united-on-18-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Aditya vs United on 18 March, 2011 - 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