DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No. 329/18
Mr. Abhinav Agrawal
S/o Dr. Alok Agrawal,
R/o Flat No.309, Pocket-B,
Sarita Vihar, New Delhi-110076
….Complainant
Versus
ICICI Lombard General Insurance Co. Ltd.,
Registered Office
ICICI Lombard House, 414, Veer Savarkar Marg,
Near Siddhi Vinayak Temple,
Prabhadevi,
Mumbai-400025
ALSO AT
First Floor, Uphaar Cinema Complex
Sector 13, Green Park,
New Delhi-110016
ALSO AT
ICICI Lombard Health Care
ICICI Bank Tower,
Plot No.12, Financial District,
Nanakram Guda, Gachibowli,
Hyderbad-500032
….Opposite Parties
Date of Institution : 30.10.2018
Date of Order : 29.06.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U.K. Tyagi
Complainant has prayed for passing an award directing M/s ICICI Lombard General Insurance Co. Ltd. (hereinafter referred to as OP) to make payment of the Medical Bill + interest @ 18% per annum to the tune of Rs.7,91,858/ etc.
Brief facts of the case are as under:-
The Complainant purchased a mediclaim policy covering the risk of his own life in 2007 from OP Company. The said policy has been renewed from time to time and policy in question was valid from 29.07.2016 to 28.07.2017. The sum assured was Rs.3,00,000/- with top of amount Rs.8,00,000/- totalling to some of Rs.11,00,000/-. The same is annexed at Annexure – A. The Complainant was suffering from gradual progressive obesity till his BMI (Body Mass Index) became more than 40 and his weight became 150 Kg. This condition in medical science is known as Morbid Obesity. He tried to reduce the same by natural way but he failed. He was “Ticking Bomb” which can explode any time. As such, he developed many complications.
The Complainant was advised by the doctor to undergo Bariatric Surgery. Accordingly, the Complainant underwent Laparoscopic Roux-en-Y Gastric Bypass on 08.06.2017. For this, he was admitted in Max Institute of Minimal Access Metabolic and Bariatric Surgery Max Super Speciality Hospital 07.06.2017 Bariatric Surgery and discharged on 11.06.2017. The discharge summary is enclosed at Annexure – C. At the time of admission in above Hospital, he applied for cashless claim but same was refused. After the surgery, the claim was submitted again before OP on 22.06.2017 for a sum of Rs.4,77,305/- alongwith requisite documents. The OP wrongly rejected the claim vide its letter dated 07.07.2017 on the ground:-
“ As per part II of the schedule exclusions 3.4 (xix) Any Expenses Incurred on treatment of Weight management services and treatment, vitamins and tonics related to weight reduction programmes including treatment of obesity (including morbid obesity), any treatment related to sleep disorder or sleep apnoea syndrome, general debility, convalescence, run-down condition and rest cure will not payable, hence rejected”
The Claim form & rejection letter are enclosed as Annexure D to F.
The Complainant maintains that no exclusion clause was brought to his notice at the time of purchase of policy. He visited the office of OP several times. He states that he has suffered great mental agony for which a compensation of Rs. 2,00,000/- be given. The said surgery reduces the mortality by 40% and 0.5% patient also died within 6 month hence it is very risky surgery. A legal notice was got served on 28.08.2018 in the absence. No solution was received from the side of OP. This caused deficiency of service.
OP, on the other hand, contended that the Complainant was seeking re-imbursement for “Morbid Surgery” which squarely falls under the permanent exclusion clause i.e clause 3.4 (xix) of the Insurance Policy as mentioned above.
In terms of said clause, OP is not liable to pay the aforesaid claim. The discharge summary was gone through and it was noticed that the Complainant had undergone the Laparoscopic Roux-en-Y Gastric Bypass which is a type of surgery to make stomach small. It is stated that the surgery falls under exclusion clause. Hence claim was rightly repudiated.
Both the parties filed Written Submissions and evidence -in- affidavits. Written Statement is on record so is rejoinder. Oral arguments were heard and concluded.
This Commission has gone through the material placed on record and primacy to the argument was also given. The averments of the Complainant are that he was not briefed adequately about the features and terms & conditions of the mediclaim policy however, the policy papers were invariably sent to policy holder. The OP also mentioned the Revision Petition No. 32/15 decided on 14.12.15 by the Hon’ble National Commission in Dr. D.J De Souza Vs Branch Claims Manager TATA AIA General Insurance Company held that:-
“On reading of the aforesaid, particularly exclusion clause (c) (ii) it is clear that illness and treatment of joint replacement is subject to exclusion of waiting period of two years. Admittedly the joint replacement was done on 30th September, 2013 i.e within six months from the date of taking of the insurance policy. Thus, the insurance company was justified in repudiating the claim in view of the aforesaid exclusion clause. Accordingly, we do not find any infirmity in the impugned order dismissing the complaint.”
The counsel for Complainant has argued citing the case of Ashwani Goyal Vs New India Assurance Co. Ltd. of Hon’ble State Consumer Dispute Redressal Commission – Punjab First Appeal No.1687 of 2010 decided on 13.12.2013 wherein the Hon’ble Commission has tried to differentiate between obesity - a common medical condition and morbid obesity, which is considered a disease. In other word “Morbid Obesity is a serious disease that has been linked to shortened the life expectancy”. “Moreover, the Morbid Obesity leads to many serious ailments. The mediclaim policy is of social welfare nature and interpretation has to be given to advance the cause of seeking welfare. Cosmetic surgery is different from Morbid Obesity. As per medical jurisprudence Morbid Obesity leads to various serious health problems like cancer, heart disease, metabolic syndrome, diabetes etc. In the other words the Insurance Company would tell a person to continue with disease of Morbid Obesity and wait till he suffers heart attack and to reimburse more expenses.”
It would be seen from the case of Dr. D.J De Souza (Supra) that the replacement of joint was subject to exclusion of waiting period of two years. As we understand that the claimant can avail the benefit of the insurance policy for the ailments which are kept in exclusion clause after the lapse of two years. Likewise, the Complainant in the instant case has been member of the mediclaim policy since 2007 and the instant policy is being renewed year after year.
The Hon’ble State Commission (Punjab) in the case of Sh. Ashwani Goyal Vs New India Assurance Co. (Supra).
“As stated above, the appellant is taking the Mediclaim policy since the year 2000 and has taken the treatment on 17.02.2010. Thus, it is clear that for the last more than four years, the appellant has not taken any treatment nor he was hospitalized for any pre-existing disease/ailment/condition/injury, as such, the pre-existing disease /condition clause is not applicable. Much reliance was placed on Conditions No. 4.4.6 which includes Obesity treatment and its complications. This clause was not specifically brought to the notice of the appellant and the term ‘Exclusions’ is more widened term than further making exclusions, once any pre-existing disease or condition is not applicable. If the treatment is not taken for a continuous period of four years, then how the relatively less serious conditions can be excluded. It has been time and again held by the Hon’ble Supreme Court that such type of exclusions should be pointedly brought to the notice of the insured to make him aware about such exclusions.”
The Complainant has found himself similarly placed in the facts and circumstances of above case and further stated that no claim has been availed by him and has been members of the policy since, 2007 onwards.
As per standard exclusion clause seen in the policies of various companies that if the treatment is not taken for a continuous period of four years, then how, the relatively less serious conditions can be excluded.
Further, it has been time and again held by the Hon’ble Supreme Court that such type of exclusions should be pointedly brought to the notice of insured to make him aware about such exclusions. The Complainant also asserted that no such exclusion was brought to his notice on which his claim was rejected and repudiation of his claim is unwarranted and unjustified.
The Hon’ble National Commission in the case of New India Assurance Co. Ltd Vs Anita Chaudhary Revision Petition No. 4750 and 4893 of 2013 etc decided on 07.04.2016 stated as under:-
“It is clear that morbid obesity is a serious disease that may be associated with severe complications which may be life threatening. It is also clear from the certificate that Laparoscopic Sleeve Gastrectomy surgery is a life saving surgery and not a cosmetic surgery. In view of this certificate, it is clear that deceased had undergone a life saving surgery and not a cosmetic surgery.”
In view of above mentioned facts and circumstances and respectfully following the various ratios of Hon’ble courts, this Commission feels that it shall not be fair and just if the claim of the Complainant is not considered favourly. Hence, we direct the OP to pay the Medical bill of Rs.4,77,305 alongwith interest @6% per annum from the date of institution of complaint in this Commission, within three months from the date of receipt of this order, failing which the interest shall be levied @9% per annum till its realization.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
