Tamil Nadu

North Chennai

CC/159/2017

S.Balachandran - Complainant(s)

Versus

M/s.New India assurance company Limited - Opp.Party(s)

M/s.A.Swaminathan

31 May 2019

ORDER

 

                                                            Complaint presented on:  03.11.2017

                                                               Order pronounced on:  31.05.2019

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT:  TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL -  PRESIDENT

 

TMT.P.V.JEYANTHI B.A., MEMBER - I

 

FRIDAY  THE 31^st  DAY OF MAY  2019

 

C.C.NO.159/2017

 

S.Balachandran,

No.165, Chitrai Street,

Chinmaya Nagar II Stage,

Virugambakkam,

Chennai – 600 092.

                                                                                        …..Complainant

 ..Vs..

M/s.New India Assurance Company Limited,

Rep by its Manager,

No.109, Nungambakkam High Road,

II Floor, Nungambakkam, Chennai – 600 034.

 

 

.....Opposite Party

Date of complaint                                 : 07.11.2017

Counsel for Complainant                      : M/s.A.Swaminathan, M.Aaaruseela

                                                                    Sudhakar, E.K.Jeyachandran

 

Counsel for  opposite party                      : M/s.G.Anandan,P.S.Kothandaraman

 

 

 

 

 

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL

          This complaint is filed by the complainant to direct the opposite party to pay a sum of Rs.59,664/- with 24% interest as claim lodged and also to pay a sum of Rs.3,00,000/- as mental agony with cost of complaint  u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant was diagnosed with Cyst in Left Mandible below the lower jaw and advised by the doctor to remove the same. The complainant was admitted in Soorya  Hospital, Saligramam, Chennai – 600 093  on 29.08.2014. The surgery was done by Dr.Krishna Kumar Raja, Facio Maxillary and Orodental Surgeon on  30.08.2014 and left mandible cyst excision done. The complainant after surgery was discharged from the hospital  0n 31.08.2014 and advised to take medicines for five days. From the year 1999 he is having the Medi Claim Policy with the opposite party and the same was renewed every year.  With regard to the disputed period 31.03.2014 to 30.03.2015 the complainant was covered under a sum insured of Rs.3,00,000/- vide policy No.713100/34/13/25/00001557 dated 25.03.2014. The complainant made his first claim from the opposite party for the above treatment and  made his claim on 15.09.2014 under the claim covered by the policy in clause 2.11 (9) – Excision of cyst/Granuloma/Lump. The opposite party after a delay of four months repudiated the claim on 21.01.2015 under the ground that the treatment undergone by the complainant is excluded under clause No. 4.4.5 of the policy as it falls within the category of dental treatment. The complainant was aggrieved by the same and represented before the Grivance Cell/Regional Office on 24.02.2015 stating that the treatment undergone by the complainant is excision of cyst in the left mandible and it was not a dental treatment as it is covered policy under clause 2.11(9).  The Regional authority (Customer Care) on 06.03.2015 rejected the claim on the same ground stating that the treatment undergone by the complainant is a dental treatment.  Aggrieved by the same the complainant preferred a complaint before the Insurance Ombudsman on 03.11.2015. Insurance Ombudsman correctly observed the deficiency in service by the opposite party in their observation. But failed to properly consider the nature of treatment undergone by the complainant and erroneously decided that it is a dental treatment excluded under clause 4.4.5 of the policy and dismissed the complaint. The complainant has not undergone dental treatment with the dentist, the treatment undergone by the complainant to excision of cyst from the left lower jaw, the surgery  was done by the Maxiofacial Surgeon and the same cannot be considered as a dental treatment. The treatment provided  was not in the dental clinic as claimed by the opposite party. The present treatment given to the complainant is an excision of cyst. The removal of the cyst formed inside the left mandible cannot be considered as a regular dental treatment to the tooth, which does not require hospitalization. But the present surgery undergone by the complainant required more than 48 hours of hospitalization. Thus repudiating the claim by the opposite party is highly arbitrary,  unreasonable and with a clear intention to repudiate the bonafide claim of the complainant which is nothing but negligent in service, unfair trade practice and not acted in accordance with the policy terms and conditions. Hence the complaint.

2. WRITTEN VERSION OF THE   OPPOSITE PARTY IN BRIEF:

          The complainant has opted for the Medicalim Policy with this opposite party through the M/s.Medi Assist India TPA Ltd., Chennai for a sum insured of Rs.3,00,000/- for himself and in the name of his wife, namely, Mrs Kouslaya Balachandran for a sum insured of Rs.3,00,000/- and paid total Net Premium of Rs.24,068/- covering the period from 31.03.2014 to 30.03.2015. The claim by the complainant does not fall within the purview of the policy terms and conditions, this opposite party regret their inability to admit the claim as early as on 21.01.2015 itself to the complainant. The observation made by the Learned Insurance Ombudsman in Award No.IO/CHN/A/GI/0144/2015-2016 dated 14.01.2016, in so far as inordinate delay in communication of the insurer’s decision to repudiate the claim is concern, is not correct. This opposite party, Insurance Company cannot deviate or depart from term of mediclaim policy 2012. There  is no deficiency in service by opposite party. The claim fall well with 4.4.5 and not 2.11 (9)  as any dental procedure done is not payable as it is an exclusion and hence the claim has been repudiated as per Mediclaim Policy 2012 condition 4.4.5 dental           treatment or surgery of any kind unless necessitated by accident and requiring hospitalization.   

3. The complainant and the  opposite party  had come forward with their respective proof affidavit and documents. Ex.A1 to Ex.A19 were marked on the side of the complainant and the opposite parties filed  proof affidavit and documents Ex.B1 to Ex.B2 were marked.  

          4. The written arguments of the complainant and the opposite party  were filed and the oral arguments of the both were heard.     

5. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite party?

          2. Whether the complainant is entitled to any relief? If so to what extent?

 

 

6. POINT NO :1 

          The complainant  has taken a Mediclaim policy No.713100/34/13/25/00001557 with the opposite party  for a sum of Rs.3,00,000/- for himself and his spouse  and paid a premium of Rs.24,068/- for the period from 31.03.2014 to 30.03.2015. During regular Health check- up, the complainant  was diagnosed with Cyst in Left Mandible below the lower jaw and he was advised to remove the same. Hence the complainant was admitted at Suriya Hospital, Saligramam, Chennai on 29.08.2014. The Surgery was done by one Dr. Krishna Kumar Raja. Facio Maxillary and Orodental Surgeon on 30.08.2014. On that day Left Mandible cyst excision was done and he was discharged from the hospital on 31.08.2014 and was advised to take medicine for five days. Mediclaim policy document is Ex.A1. Discharge summary from the hospital and the final bill issued by the Hospital are Ex.A2 and Ex.A3.

           07.  Complainant’s claim was submitted to the opposite party  on 15.09.2014 along with the required documents vide Ex.A4 for a sum of Rs.59,664/-  A reminder was sent by the complainant  on 03.11.2014 and also informing that  excision of cyst is eligible under para 2.11.(9).  of the terms of the policy in Ex. B1 explains about the Hospitalization  and it reads as:

 ‘Hospitalisation means admission as an in patient in a Hospital upon the written advice of the Registered Practitioner for medical/surgical treatment for a minium period of 24 hours. However, this time limit shall not apply  to treatment listed below’

9. Excision of Cyst/granuloma/lump

 Therefore the treatment for excision of cyst/ granuloma / lump, 24 hours time limit shall not apply. HPE report of the complainant  was sent to the opposite party  vide Ex.A6 dated 02.12.2014. As per the Histo Pathology Examination Report the impression is “Dentigerious Cyst”. Again reminder was sent to the opposite party  by the complainant  explaining the facts in Ex. A7.

           08. The claim of the complainant  was repudiated on 21.01.2015  vide Ex.A8 stating the reasons as the procedure was a dental related procedure  and not payable. There was a correspondence between the parties. Under Ex.A10 letter again,  opposite party  had pointed out para 4.4.5. which reads as:

“4.4.5: Dental treatment or surgery of any kind unless necessitated due to an accident and requiring hospitalization.”

and hence  it was  rejected. When the matter was taken upto  Insurance Regulatory & Development Authority (IRDA) resulting in confirming the rejection vide Ex.A14 letter and then again the complainant  had approached  Insurance Ombudsman and it is observed in Ex.A14 that there is a violation of IRDA rules as the complainant  was not responded within  a period of one month but confirmed the repudiation by the opposite party. The articles published in different publishers are submitted on the side of the complainant and marked as Ex.A15 to Ex.A19.

 09. The contention of  the complainant is that he  has not undergone  dental treatment with dentist, the treatment undergone was for the excision of cyst from the left lower jaw. Since the surgery was done by the Maxiofacial surgeon, the same cannot be considered as dental treatment and the treatment was also not given in the dental clinic and the surgery required hospitalization also therefore repudiation by the opposite party  clause 4.4.5 of the policy is not correct and the opposite party  is liable to pay the claim under clause 2.11.9 and also  there is a delay in considering the claim, the rejection after a period of one month is a violation of the  IRDA rule.

           10. The opposite party would contend that the delay in repudiating the claim was only because of the delay in submitting HPE report by the complainant, the claim fall within the ambit of clause 4.4.5. and not under clause 2.11.9 as any dental procedure done is not payable as it is an exclusion  hence the claim has been repudiated under the said policy therefore  prayed for dismissal of the complaint. The only issue which has arisen in this case is whether the treatment given to the complainant covered under the policy clause in 2.11.9 as claimed by the complainant or excluded under the policy clause 4.4.5 as repudiated by the opposite party. As submitted in the articles in Ex.A15 and Ex.6 , Cyst is explained as a Capsule or Sac – like structures, typically filled with liquid, semisolid, or gaseous material, very much like a blister and it occurs within tissue and can affect any part of the body. Dentigerous cysts are cysts surrounding the crown of an unerupted tooth. Under the head of types of doctors who treat the cysts, it  is explained  that it may be treated by  different specialists  depending on the location and cause of the cyst. The location of the cyst is left lower Mandible, for the removal of the cyst second Molar tooth was extracted for the exposure of the cyst since it is in left Mandible and the cyst can be removed by any General Surgeon but due to its location Dental Surgeon attended for extraction of the tooth and then the removal of cyst was done.  It has to be done so, but a general surgeon can remove the cyst but not without the help of the Dental surgeon due to its location.  It is moreover a common cyst called as Dentigerous cyst  named after its location like  a cyst is formed in a ovary  is called as ovarian cyst .The Studies regarding the type of Doctors treating the cysts explains “ Cysts may be treated by primary-care doctors, including general and family medicine physicians . Surgeons may treat cysts when drainage or Surgical  removal is necessary. Other types of cysts may be treated by different specialists depending on the location and cause of the cyst. These specialists can include Obstetrician Gynecologists,  hand surgeons, orthopedic surgeons or others.” Therefore it cannot be branded as Dental procedure followed, it was treated by a Dental surgeon depending on the location and comes under the clause 2.11.9 of the policy terms. In Conclusion, the treatment undergone by the Complainant to remove the cyst is to be treated under the clause 2.11.9 in the policy and it is not purely a Dental treatment and opposite party  has negligently repudiated the claim without appreciating the facts.

             11.  The complainant made a claim on 15.09.14 and it was repudiated by the opposite party  only on 21.01.2015. The opposite party would contend that the delay is because of the submission of HPE report belatedly by the complainant. No document filed by the opposite party  for their alleged correspondence between the complainant  and opposite party regarding the same. However, the repudiation is not based on the HPE report and also the report was sent to opposite party  through e-mail on 02.12.2014 under Ex.A6. Repudiation is on 21.01.2015 after a period of one month belatedly, which is a violation of IRDA policy holders protection regulations, 2002.Therefore the deficiency on the part of the opposite party  is clearly found. The  opposite party  had raised the point of belated submission of claim by complainant,  only at the time of argument  and not raised  in the written version  and more pertinently  the claim was not repudiated on that point and also hence that point  is not considered by this forum.

12.PONT NO:2

                As discussed in the earlier point, and in view of the act of the opposite party, the complainant suffered mental agony is accepted. Therefore opposite party is liable to pay the claim amount of  Rs.59,664/- with 9% interest from 15.09.2014 till date of payment and also pay an amount of Rs.10,000/- for mental agony besides a sum of Rs.5000/- for costs.                        

In the result, the complaint is partly allowed. The opposite party is directed to pay a sum of Rs.59,664/- (Rupees fifty nine thousand six hundred and sixty  four only) towards claim amount with 9% interest from 15.09.2014 till date of payment  to the complainant and also to pay a sum of Rs.10,000/- (Rupees ten thousand only) as compensation for mental agony  besides, a sum of Rs.5,000/- (Rupees five thousand only) for costs.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 31^st day of May 2019.

 

MEMBER – I                                                                PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 25.03.2014         Complainant’s Insurance Mediclaim Policy No.71310034132500001557 and opposite party’s Mediclaim policy document.

Ex.A2 dated 31.08.2014         Discharge summary of the complainant issued by Sooriya Hospital

Ex.A3 dated 01.09.2014         Final bill issued by Sooriya Hospital

Ex.A4 dated 15.09.2014         Complainant’s claim submitted to the opposite party

Ex.A5 dated 03.11.2014         Complainant’s reminder to the opposite party

Ex.A6 dated 02.12.2014         Complainant’s email to the opposite party enclosing HPE report

Ex.A7 dated 06.01.2015         Complainant’s email to the opposite party

Ex.A8 dated 21.01.2015         opposite party’s letter to the complainant informing the claim stands repudiated

Ex.A9 dated 24.02.2015         Complainant’s letter to the opposite party grievance

Ex.A10 dated 06.03.2015       opposite party letter to the complainant

Ex.A11 dated 16.05.2015       Complainant sent complaint to Insurance Regulatory and Development Authority (IRDA)

Ex.A12 dated 29.06.2015       IRDA reply to the complainant

Ex.A13 dated 17.07.2015       opposite party’s letter to the complainant

Ex.A14 dated 14.01.2016       Order passed by the Insurance Ombudsman Tamil Nadu & Puducherry in Award No.IO/CHN/A/G1/0144/2015-2016

Ex.A15 dated 16.08.2017       The article published about “Cyst” in Medical News today website

Ex.A16 dated 09.11.2017       The article published about “cyst” in emedicinehealth.com

Ex.A17 dated NIL                   The article published about “Dental Treatment” by betterhealth.vic.gov.au Australian dental association

Ex.A18 dated NIL                   The article published about “Dental Treatment” by nhs.uk

Ex.A19 dated 2017                 The article published about “Dental Treatment” by Ontario Dental association

 

 

 

 

 

LIST OF DOCUMENTS FILED BY THE   OPPOSITE PARTY:

 

Ex.B1 dated NIL                     Mediclaim – 2012 policy document

 

Ex.B2 dated                            Letter of Medi Assist

 

 

MEMBER – I                                                               PRESIDENT