BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.47 of 2019
Date of Instt. 13.02.2019
Date of Decision: 31.03.2023
Lokesh Goyal, aged 27 years, son of Rajinder Parshad Goyal, resident of house No.3-4/8, Mool Raj Road, Mohalla No.2, Jalandhar Cantt.
..........Complainant
Versus
1. Max Bupa Health Insurance Co. Ltd. B-1/1-2, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110044.
2. Max Bupa Health Insurance Co. Ltd. Unit No.3, Plot No.88, 2nd Floor, Kunal Tower, Mall Road, Opp. Axis Bank, Ludhiana- 141001.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Anil Kalia, Adv. Counsel for the Complainant.
Sh. Gautam Kumar, Adv. Counsel for the OPs No.1 & 2.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant had taken a medical health insurance policy from opposite parties, which commenced from 18.11.2017 and expired on 17.11.2018. The policy number was 30601669201701, and the base sum assured was Rs. 25,00,000/-. The complainant had paid Rs. 18,282/- to OP as premium for the said policy. All the relevant details of this policy are mentioned in the insurance certificate issued by OPs. This policy covered the treatment and hospitalization charges etc. to be incurred by complainant in case of Member illness. Towards the end of April, 2018 and start of May, 2018, complainant started having the problem of blocked/stuffy nose along with throat infection and fever. Complainant got himself examined by Dr. Kapil Gupta, M.D. of Kapil Hospital, Jalandhar, on 18-05-2018 who thoroughly checked the complainant, prescribed medication, and also advised MRI test for upper airway. The complainant got the MRI testing done from Mann Health Care Pvt. Ltd., 201, Gujral Nagar, Jalandhar, on 19-05-2018. The MRI report showed increased soft palate size and enlarged bilingual tonsils causing significant narrowing of the airway at the level of lingual tonsils. As this problem of complainant required surgical treatment, the complainant went to MAX Super Specialist Hospital, Saket, New Delhi, and got himself examined on 09-06-2018. The complainant was thoroughly examined by the concerned specialist, and his problem was diagnosed as Septal Spur (Nose to R) with tonsils; oropharyngeal grade 3, lingual grade 3, causing upper airway resistance syndrome which can effect oxygenation of cerebral hemispheres. The treatment prescribed was surgical correction to prevent hypoxia, which is Tonsillectomy and correction of Septal Spur. 'Hypoxia' is deficiency in the amount of oxygen reaching the tissues, and in the case of complainant, it meant that lesser than the required amount of oxygen was reaching the brain. In order to get himself treated and cured of his problem, complainant got admitted in the above said Max Super Speciality Hospital, Saket on 14-06-2018 where surgical procedure in the form of ROBOTIC Surgery (Septoplasty + Tonsillectomy) was performed upon him. Thereafter, complainant was discharged from hospital on 15-06-2018. For the entire abovementioned treatment of complainant at Max Super Speciality Hospital, the complainant paid Rs.4,65,635/- which included charges for surgery, laboratory tests, hospital stay, medicines etc., to the said hospital. The complainant then lodged a claim with opposite parties on 07-11-2018, for reimbursement of the above said medical expenses of Rs.4,65,635/- under the insurance policy, but the OPs have paid only Rs.50,000/- arbitrarily, and have disallowed the remaining amount of Rs.4,15,635/-, as detailed in their letter dated 16-01-2019, which is without any basis. The refusal to pay the full amount of claim, and the disallowing of Rs. 4,15,635/- by the OPs is illegal, arbitrary and not justified. The OPs have no right to do so. On enquiry, the officials of OPs have stated that the major portion of the claim has been disallowed on the ground of exclusion of disease ‘Sleep Apnoea’ which is incorrect. Sleep Apnoea was not the disease of complainant. It may, at the most, be a symptom, or a manifestation of complainant's disease which was diagnosed as Septal Spur (Nose to R) with tonsils; oropharyngeal grade 3, lingual grade 3, causing upper airway resistance syndrome which can effect oxygenation of cerebral hemispheres. The problem of complainant was nasal blockage which was being caused by the above mentioned defects in his nasal system, and have been cured surgically. The defects in the nasal passage/airway, as stated above, were causing Hypoxia which, in turn, is the cause of sleep apnoea. The refusal by OPs to pay the full amount of claim, and the disallowing of Rs.4,15,635/- amounts to malpractice, deficiency in service and unfair trade practice on their part for which they are liable, as complainant is their consumer, having bought the insurance by paying its premium and as such the present complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay Rs.4,15,635/- to the complainant with interest and also another amount of Rs.2,00,000/- as compensation for causing harassment to the complainant.
2. Notice of the complaint was given to the OPs, who appeared through its counsel, but failed to file written statement despite taking number of opportunities alongwith cost and ultimately OPs No.1 and 2 were proceeded against exparte. Thereafter, OPs No.1 and 2 filed an application for joining the proceedings and the same was allowed with condition to argue the case only.
3. In order to prove his respective version, the complainant has produced on the file his respective evidence.
4. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the OPs No.1 and 2 very minutely.
5. It is admitted and proved that the complainant had taken a medical health insurance policy from the OPs commencing from 18.11.2017 till 17.11.2018. The complainant has proved on record the copy of the insurance certificate Ex.C-1, which shows that the base sum assured was Rs.25,00,000/- and the policy period was for one year. The complainant has proved that on 18.05.2018, he had a problem of blocked/stuffy nose alongwith throat infection and fever. He has proved on record the prescription of the doctor of Kapil Hospital dated 18.05.2018, in which the doctor has advised MRI test for upper airway. The prescription slip has been proved by the complainant Ex.C-2 and the MRI has been proved by the complainant Ex.C-3, which shows that the impression and opinion of the doctor was ‘Dynamic Fluoroscopic Mr Images Reveal increased Soft Palate Size and Enlarged Bilateral Lingual Tonsils Clausing Significant Narrowing Of The Airway At The Level of Lingual Tonsils’. Thereafter, the surgery of Tonsillectomy and Spur-Correction of septal spur was recommended by the Max Health Care, which has been proved as Ex.C-4. Perusal of this document shows that he was diagnosed with nasal block more on the right side, throat pain and it was diagnosed that the patient is suffering from Septal Spur to right and Oropharyngeal Grade 3, Linguar Grade 3 and as per the opinion of the doctor, this can affect oxygenation of cerebral hemispheres. The discharge summary has been proved by the complainant as Ex.C-5. Perusal of this document shows that the Robotic surgery (Septoplasty + Tonsillectomy) was done on 14.06.2018. He was diagnosed with nasal blockage.
6. The contention of the OP is that Rs.50,000/- were approved against the build amount of Rs.4,65,635/- as as per the investigation of the company and hospital record, the patient i.e. insured was suffering from Sleep Apnea Protocol. The treatment for Sleep Apnea, Snoring or any other Sleep related breathing problem is not covered under the policy terms and conditions. It has been alleged that as per the policy terms and conditions, the treatment is covered under the permanent exclusion and accordingly, the remaining payment was declined.
7. This fact is admitted that the complainant produced before the OPs the claim for Rs.4,65,635/-. The OP has alleged that as per the consultation note dated 04.06.2018, the patient was diagnosed with OSAS, which is Obstructive Sleep Apnea Syndrome. But there is no document on the file dated 04.06.2018, which may show that the complainant was diagnosed as OSAS. Perusal of Ex.C-2 to Ex.C-4 and Ex.C-5 shows that the complainant was suffering from the blocked nose, throat pain, mouth breathing at night and difficulty in breathing. Mouth breathing at night may be one of the symptoms of Sleep Apnea, but this was not the only reason for which the surgery was conducted. MRI was also done. Alongwith mouth breathing, he was also having the problem of nasal blockage. Robotic surgery (Septoplasty + Tonsillectomy) was done, this means that the operation of Tonsillectomy and Septoplasty was done to improve the quality of the life of the patient. Septoplasty is the surgery performed to straighten or repair the septum of the nose, whereas Tonsillectomy is surgical removal of the Tonsils. It has nowhere been mentioned that the patient was diagnosed only for Sleep Apnea. More so, the complainant has alleged that he was never supplied with any terms and conditions. It has been held in a case titled as “Bajaj Allianz General Insurance Co. Ltd. Vs. Rajwant Kaur and Other”, 2021 (3) CLT 540 (CHD) that the onus is on the appellant insurance company to prove that it provided the terms and conditions of the policy to the complainant and the same were in her knowledge. It has been held in a case titled as “National Insurance Co. Ltd. & Ors Vs. M/s Saraya Industries Ltd”, 2020 (1) CLT 278 (NC) that it is the duty of the insurance company to supply all the terms and conditions of an insurance policy to the policy holder-there cannot be any presumption under law on the terms and conditions. It has been held in a case titled as “Bhanwar Lal Vishnoi Vs. Oriental Insurance Co. Ltd.”, cited in 2017 (1) CLT 401, that the insurance co. has to prove that the exclusion clause under which the claim is sought to be repudiated was communicated to the complainant. No policy has been filed on record to show that the case of the complainant was covered under the exclusion clause as alleged by the complainant. The OP has failed to rebut the version of the complainant. Therefore, the complainant is entitled for the relief.
8. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to pay claimed amount of Rs.4,15,635/- with interest @ 6% per annum from the date of repudiation of the claim till its realization. Further, OPs are directed to pay a compensation of Rs.10,000/- to the complainant for causing mental tension and harassment and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
31.03.2023 Member Member President
