ORDER

(Per: Mrs. Veena Sharma, Member):

This appeal, under Section 15 of the Consumer Protection Act, 1986, has been preferred by appellants-opposite parties against the order dated 26.10.2015 passed by the District Forum, Dehradun in consumer complaint No. 423 of 2013, whereby the District Forum has allowed the consumer complaint and directed the appellants-opposite parties to pay claim amount of Rs. 22,203/-, Rs. 10,000/- for compensation and Rs. 5,000/- towards litigation expenses to the complainant, within one month from the date of order, failing which the complainant shall be entitled to get interest @ 8% per annum from the date of order till the date of actual payment.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that on 20.11.2008 the complainant had purchased Hospitalization Benefit Policy from the opposite party No. 1-National Insurance Company Ltd. for himself and his family.  It is alleged that there is a joint venture between the opposite parties. The said mediclaim policy was got renewed by the complainant in the subsequent years and also continued at the time of filing the consumer complaint. In the month of May, 2011, the complainant suffered severe pain in his back. The complainant got his treatment through Ozone Therapy by Dr. J.C. Malgudi and got relief.  There after the complainant submitted the claim form with the insurance company and completed the entire formalities, but his claim was repudiated by the insurance company under Clause 4.13 “Naturopathy, Unproven Procedure/Treatment, experimental or alternative medicine/ treatment including acupuncture, acupressure, magneto therapy etc.” The complainant has filed a complaint, bearing consumer complaint No. 14 of 2012, against the opposite parties, which was decided on 13.08.2012 in complainant’s favour.  The insurance company has filed an appeal against the order dated 13.08.2012 before this Commission  and the State Commission has decided the said appeal and passed an order in favour of complainant Sh. Mahesh Pant and directed the appellant to pay                 Rs. 1,39,398/- to the complainant with interest @ 9% per annum and        Rs. 5,000/- towards litigation expenses. The insurance company has complied the said order.  On 11.12.2012, again the complainant suffered from the same problem on his back.  He went to Max Hospital, Dehradun and was examined there.  During examination, when doctors came to know about the Ozone Therapy as prior treatment, the complainant was advised to consult Dr. J.C. Malguri.  The complainant consulted Dr. J.C. Malguri and took treatment through Ozone Therapy.  The complainant submitted his claim form with the insurance company and completed all the formalities, whose file number was 13RB05NAF0566, but his claim was repudiated under Clause No. 4.13 “Unproven Procedure/Treatment”. Therefore, alleging deficiency in service on the part of the opposite parties, the complainant filed a consumer complaint before the District Forum, Dehradun.

3.       The insurance company-opposite party No. 1 filed written statement before the District Forum and pleaded that the complaint so far is it refers to earlier decisions of the District Forum and State Commission, the same are a matter of record and can be better appreciated there from. All allegations to the contrary are wrong and denied.  However, it is pertinently submitted that the complainant with oblique motives is misconstruing the said decisions.  It is reiterated that as per the terms of Clause No. 4.13, the claim of the complainant is not admissible as ozone treatment allegedly underwent by the claimant is an unproven procedure/treatment and in terms of the impugned policy no amount is liable to be paid. It is denied that the answering opposite party is committing any contempt of the District Forum or that of Hon’ble State Commission, as alleged. The parties to the impugned contract are bound by the terms and conditions of the impugned policy and hence in accordance thereof the claim was liable for repudiation.  Hence there exists no deficiency in service on the part of the answering opposite party.  The impugned insurance contract is to be strictly construed in the manner in which the terms and conditions are stipulated therein.  No artificial meaning can be lent except to construe the language as it appears in the insurance contract. The present complaint is legally not maintainable and is liable to be rejected.

4.       Learned counsel for the opposite party No. 2-Vipul Medcorp, TPA Private Limited has filed written statement in the form of affidavit (paper Nos. 18 to 21).  In the written statement/affidavit, it is stated that these procedures are performed without surgery by Anesthetist and Orthopedic Surgeons.  This treatment is not an approved treatment in any of the text books of Orthopedics, neurology or internal medicine. This is an alternative medicine treatment which is specifically excluded in the policy. These kind of treatments are not approved by Indian Council of Medical Research.  Ozone therapy is not a proven treatment and not FDA approved or being widely practiced by professional bodies. On processing the claim papers submitted by the complainant the opposite party No. 2, the duly Authorized Agency for settlement of Medi-claims approved by the Insurance Regulatory and Development Authority, Government of India gathered that as per the terms and conditions of impugned policy the treatment taken by complainant came under Exclusion Clause No. 4.13.

5.       The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 26.10.2015 in the above terms.  Aggrieved by the said order, the opposite parties have filed this present appeal.

6.       We have heard Sh. Deepak Ahluwalia, learned counsel for the appellants as well as Sh. K.K. Chaturvedi, learned counsel for respondent. We have also gone through the entire record of the District Forum and have also perused the record.

7.       Exclusion Clause 4.13 of the insurance policy states that “The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any person in connection with or in respect of Naturopathy, unproven procedure/treatment, experimental or alternative medicine/treatment including acupuncture, acupressure, magneto therapy etc.”.

8.       Learned counsel for respondent has submitted before this Commission that this Commission has passed an order in favour of respondent on the same facts, prior in consumer complaint No. 14 of 2012. The opposite parties-appellants did not consider the above decision in the instant case and repudiated the claim of the respondent, which is contempt of Court.  The appellants have willfully violated/disobeyed the order of the State Commission. 

9.       Learned counsel for the appellants-insurance company has submitted that the treatment taken by the respondent comes under the category of “unproven procedure/treatment” and insurance company is not liable to reimburse the mediclaim expenses incurred by the respondent in his treatment through Ozone Therapy because in accordance with the terms and conditions of impugned policy, the treatment taken by the respondent falls under Exclusion Clause No. 4.13 and is legally not maintainable.  Because the conclusion drawn that in the earlier round of litigation the appellants had not challenged the decision passed by the State Commission and had paid the decretal amount and hence the said decision is binding and acts as a ratio decidendi is a wrong conclusion. The conclusion drawn that the earlier decision passed acts as judicial precedent and is fully binding can be so on that given facts, but cannot be binding for all times to come when in the present matter in hand there is unrebutted evidence to substantiate that ozone therapy underwent is an unproven mode of treatment and policy and conditions specifically require payment only if treatment underwent is proven mode of treatment. The decision of the District Forum that on technical grounds claim could not be rejected or on hyper technical pleas is wrong conclusion, since on the basis of unrebutted evidence on record, the appellants have been able to establish that claim was rightly repudiated and there was no technical ground as there was policy violation. The Forum below has not appreciated the terms and conditions under which indemnification was provided. Relevant aspects were completely overlooked by the Forum below.

10.     The District Forum had decided the consumer complaint on the basis of earlier judgment, wherein the consumer complaint was allowed and the appeal was dismissed by this Commission. The claim was allowed in respect of Ozone Therapy. Learned counsel for the appellants has vehemently urged that in earlier case, the insurance company did not file any evidence in rebuttal against the affidavit filed by the complainant-respondent. Therefore, on the basis of the evidence filed by the respondent-complainant, the consumer complaint was allowed. In the case at hand, the appellants-opposite parties have filed evidence in rebuttal and also filed the medical literature regarding Ozone Therapy as unproven procedure/treatment.  The District Forum has committed manifest error of law in not considering the evidence and decided the consumer complaint between the parties. The District Forum has failed to consider that the present claim was lodged of a different period after renewal of the policy.  The finding in respect of judicial precedent is not applicable in the facts and circumstances of the case. Since, in earlier case no evidence was adduced by the insurance company.  The earlier case was decided only on the basis of evidence adduced by the complainant-respondent.  Therefore, we are of the view that the consumer complaint be decided on its own merit on the basis of the evidence. Therefore, we are considering the evidence laid by the parties in appeal. Therefore, we are deciding the appeal on merit.

11.     In earlier case, the District Forum has taken cognizance of the affidavit of Dr. J.C.  Malguri, an Orthopedic Surgeon, who has stated that the respondent was suffering from slip disc and he had told the respondent that the said disease is curable without undergoing operation. He has also stated that Ozone Discolisis is an approved treatment in India and in Europe, the same is being used for the last 12 years. An affidavit of          Sh. Balraj Gupta, Medical Director, Vipul Medcorp TPA Pvt. Ltd. (paper Nos. 42 to 43) is filed on record, wherein it is stated that in this therapy, the patient is given an intradiscal (4ml) and periganglionic (8ml) injection of an oxygen-ozone mixture at an appropriate concentration.  Ozone has a direct effect on the disk’s nucleas pulposus, resulting in its release of water molecules and subsequent cell degeneration of the matrix, which is replaced by fibrous tissues in the space of 5 weeks and the formation of new blood cells.  Together, these events result in a reduction in disk volume.  At the end of treatment, patients are advised to rest in supine decubitus position for 2 hours and are discharged on the same day.  Therefore, no hospitalization is required, hence it is a day care procedure. This procedure is not mentioned in the list of approved procedures to be paid under day care under policy clause 2.6. This treatment is not an approved treatment in any of the text books of orthopedics, neurology or internal medicine.  This is an alternative medicine treatment which is specifically excluded in the policy. These kind of treatments are not approved by the Medical council of ICMR (Indian Council of Medical Research) or similar such bodies, they have nothing to do with approval of such treatments.  It has not been approved or widely accepted or practiced by the professional bodies. Therefore, this falls under the specific exclusion clause. Literature in which it is clearly written that Ozone therapy is not a proven treatment and not FDA approved.  No evidence in rebuttal of the affidavit of Dr. J.C. Malguri, was adduced by the insurance company in the earlier case, but in the instant case, an affidavit of Mr. N.K. Marwari of insurance company has been filed, wherein it is stated that the present litigation is a fresh litigation on a different cause of action wherein the conclusion will be drawn on the basis of facts and appreciation of evidence. The decision passed in earlier litigation is not binding in present litigation as is tried to be highlighted by the complainant.  

12.     By perusal of the documents filed by the parties, it is evident that there is a little difference between both the cases, which are discussed above.  In earlier case consumer complaint No. 14 of 2012, the opposite parties-appellants did not file any rebuttal against the affidavit of Dr. J.C. Malguri and could not file any evidence in support of their contention.  In the prior judgment, which is filed on record (paper No. 33), in para No. 8 it is the finding of this Commission that no evidence in rebuttal of affidavit of       Dr. J.C. Malguri, was adduced by the insurance company.  This apart, the insurance company has failed to produce any medical literature/opinion in respect of the view that Ozone Therapy is an unproven procedure/treatment. So in lack of evidence, the District Forum and this Commission have delivered the orders in complainant’s favour.  But in the instant consumer complaint, the opposite parties-appellants have filed evidence in rebuttal.  In the instant matter, the appellants-opposite parties have filed affidavit of Dr. Balraj Gupta, which is not rebutted by the complainant and also filed medical literature in support of Dr. Balraj Gupta’s affidavit to prove Ozone Therapy is an unproven procedure/treatment. Hence, the aforesaid decisions were binding only on the given factual position. So decision passed in earlier round cannot be binding for all the times.  It is a settled law that both the parties, i.e. insurance company and insurer are bound by the terms and conditions of the insurance contract.

13.     Learned counsel for the appellants has cited following decisions in support of his submissions:-

 (i) Oriental Insurance Co. Ltd. vs. Sony Cheriyan; AIR 1999 Supreme Court 3252

(ii) United India Insurance Co. Ltd. vs. M/s Harchand Rai Chandan Lal; 2005 (1) CPR 64 (SC).

(iii) IND Swift Limited vs. New India Assurance Co. Ltd. & Ors.; IV (2012) CPJ 148 (NC)

14.(i) In the case of Oriental Insurance Co. Ltd. (supra), the Hon’ble Apex Court has held that the insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer.  The insured cannot claim anything more than what is covered by the insurance policy.  That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein.  

(ii)     In the case of United India Insurance Co. Ltd. (supra), the Hon’ble Apex Court has held that the policy is contract between the parties and both parties bound by terms of contract. It is settled law that the terms of the contract has to be strictly read and natural meaning be given to it.  On outside aid should be sought unless the meaning is ambiguous.    

(iii)    In the case of IND Swift Limited (supra), the Hon’ble National Commission has held that it is to be construed strictly as per terms and conditions of policy document which is a binding contract between parties and nothing can be added or subtracted by giving different meaning to words mentioned therein.  The decisions referred above cited by the learned counsel for the appellants are fully applicable in this case also.

15.     In view of the above forgoing discussion and evidence adduced by the parties, we are of the considered opinion that the District Forum has not discussed the documents and affidavit filed by the opposite parties-appellants and also failed to appreciate the documents filed by the insurance company. Therefore, the appeal succeeds accordingly and the order passed by the District Forum is liable to be set aside.

16.     For the reasons aforesaid, the appeal is allowed.  Impugned judgment and order dated 26.10.2015 passed by the District Forum, Dehradun is set aside and the consumer complaint No. 423 of 2013 is dismissed.  No order as to costs. The amount deposited by the appellants as statutory amount at the time of filing the appeal be released in appellants’ favour.