CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
ISBT KASHMERE GATE DELHI
CC/193/2016
No. DF/ Central/ Date
Sh. Bishan Swaroop Aggarwal
S/o Late Sh. G. L. Aggarwal,
R/o 1/23, Sector-5,
Rajinder Nagar, Block-23,
Ghaziabad, U.P. …..COMPLAINANT
VERSUS
National Insurance Co. Ltd.
(Through: its Director/Manager/Authorized Representative)
Divisional Office No.-II,
Third Floor, Deendayal Upadhaya Bhawan,
New Delhi-110055. …..OPPOSITE PARTY
Quorum : Ms. Rekha Rani, President
Ms. Manju Bala Sharma, Member
ORDER
Ms. Rekha Rani, President
- Instant complaint was filed by Sh. Bishan Swaroop Aggarwal (in short the complainant) under Section 12 of the Consumer Protection Act, 1986 as amended up to date pleading therein the following facts:
He was issued a Mediclaim Policy by National Insurance Co. Ltd. (in short OP) which was renewed from time to time. Lastly he was issued a renewed Mediclaim Policy bearing No. 350200/48/14/8500001402 with sum insured of Rs.3,50,000/- valid from 19.11.2014 to 18.11.2015 in the name of the complainant and his wife. During the subsistence of the said policy the complainant suffered with life threatening Clinically Severe/Morbid Obesity, Uncontrolled Diabetes Mellitus, Systemic Hypertension, Severe Pulmonary/Restriction and Clinical Sleep Apnoea. The doctors at Ganga Ram Hospital after diagnosing the problems prescribed Bariatric Surgery for the same as life saving solution.
Accordingly, as advised by the doctors at Ganga Ram Hospital, complainant had undergone Bariatric Surgery at Ganga Ram Hospital and he was discharged on 01.02.2015. The hospital raised a bill of Rs. 4,50,000/- towards treatment of the complainant which complainant paid from his own resources. Thereafter he submitted claim for reimbursement with OP with requisite documents. Claim was not processed. Therefore, he issued a legal notice dated 25.02.2016. OP did not reply to the legal notice nor did it process the claim. Hence, instant complaint was filed seeking direction to OP to pay to the complainant a sum of Rs. 4,00,750/- towards reimbursement, Rs. 2,00,000/- as compensation for deficiency in service with interest @ 12% per annum till date of payment and cost of litigation.
2. OP contested the claim vide its written statement. It is pleaded that as per terms of the policy all the diseases/injuries which are pre-existing when the cover incepts for the first time will be covered after four continuous claim free years. It is further stated that pre-existing diseases like diabetes and hypertension are covered only on payment of additional premium.
It is further stated that as per exclusion clause of ‘Parivar–Mediclaim for family policy’ OP is not liable to make any payment under the policy in respect of any expense incurred towards cosmetic or aesthetic treatment, plastic surgery other than as may be necessitated due to an accident or as a part of any illness. It is also stated that the complainant was diagnosed with Morbid Obesity with Cholelithiasis which falls under the exclusion clause of the policy and therefore TPA found the claim of the complainant inadmissible.
3. Parties have adduced evidence by way of affidavits. We have heard Sh. Arvind Saraswat, counsel for complainant and Sh. Devender Singh, counsel for OP.
4. In Para 3, Page 2 of the complaint it is mentioned that complainant was issued a mediclaim policy by OP and the same was ‘renewed from time to time’. Lastly he was issued a ‘renewed’ policy bearing no. 350200/48/14/8500001402 with sum insured of Rs.3,50,000/- valid from 19.11.2014 to 18.11.2015 .
In corresponding Para 3, Page 2 of its written statement OP has not denied that it issued mediclaim policy to the complainant and the same was renewed from time to time and lastly the complainant was issued a renewed policy bearing no. 350200/48/14/8500001402 with sum insured of Rs. 3,50,000/- valid from 19.11.2014 to 18.11.2015.
In Para 2 of his rejoinder complainant has clearly stated that he has been continuing with the coverage of risk for several years and has not made any claim in last so many years i.e. since 2009.
5. In Ashwani Goyal vs. New India Assurance Company (First Appeal No. 1687 of 2010) dated 13.12.2013 before Punjab State Commission, Chandigarh, the complainant had kept himself insured under mediclaim policy continuously since the year 2000 and lastly he was insured under mediclaim policy for the period 21.06.2009 to 20.06.2010. He was diagnosed as a patient of “Morbid Obesity with BMI 40.0 kg/m.sq”. He was admitted in Kular Hospital, Bija, Ludhiana on 17.02.2010 and he was discharged on 20.02.2010. His claim was contested by the insurer on the same grounds as in the present case. District Forum dismissed the complaint observing that policy purchased was in continuation of the previous Mediclaim Policy and that obesity with complications falls within the exclusion clause, the same being cosmetic surgery. In appeal, the State Commission observed that the applicant was taking Mediclaim policy since 2000 and had never claimed any relief till the filing of the complaint. State Commission discussed the exclusion clause of Medicalim policy dealing with pre-existing disease/ailment/condition/injury. It held that for the last more than 4 years the appellant had not undergone any treatment nor he was hospitalized for any pre-existing disease/ailment/condition/injury, as such, the pre-existing disease/condition clause was not applicable.
In the instant case also the complainant is continuously being covered under the mediclaim policy since the year 2009 with the OP. He has never claimed any benefit towards any treatment in any hospitals. Therefore repudiation of his claim under exclusion clause 4.1 is not justified.
6. OP has repudiated the claim also on the ground that cosmetic or aesthetic treatment and plastic surgery will not be covered. OP has stated that complainant was diagnosed as a patient of Morbid Obesity with Cholelithiasis and Bariatric surgery undergone by him is as cosmetic surgery.
On similar facts, Punjab State Commission, Chandigarh in Ashwani Goyal (Supra), wherein the patient was diagnosed as a patient of Morbid Obesity with BMI 40.0 kg/m.sq and was advised Laparoscopic Sleeve Gastrotocomy, had held:
“18. Much stress was laid by the counsel for the appellant that the surgery conducted was not for the purpose of cosmetic, nor it can be termed as cosmetic surgery, as is clear from the certificate Ex.A-7. 'Morbid Obesity' is a condition which leads to so many diseases such as diabetes, hypertension, depression etc. and it is not covered under the term 'permanent exclusions' and as per the literature, 'Morbid Obesity' is a serious disease.
19. …….
"It is important to understand the difference between obesity, a common medical condition and morbid obesity, which is considered a disease.
20. Again, under the head 'Morbid Obesity', it is mentioned as follows:-
"Morbid Obesity is a serious disease that has been linked to shortened life expectancy."
21. From the above, it is clear that 'Obesity' is a common medical condition, but 'Morbid Obesity' is considered as a disease which leads to many ailments.”
In the present case, OP has stated in its written arguments that the complainant was diagnosed as a patient of Morbid Obesity with BMI (Body mass Index)-56.4 kg./m2 which is much more than that of the complainant in Ashwani Goyal (Supra). Complainant has also placed on record a copy of certificate issued by Dr. Sudhir Kalhan dated 24.01.2015 as Annexure-‘B’ which reads that “Mr. Bishan Swaroop Aggarwal 60 year old gentleman has presented with life-threatening Clinically Severe / Morbid Obesity (Body mass Index BMI=56.4 kg./m2), uncontrolled Diabetes Mellitus despite medications, Systemic Hypertension, Severe Pulmonary Restriction and clinical obstructive sleep apnoea. He has been advised bariatric surgery as an essential life-saving long-term solution for the above life-threatening conditions. This is not a cosmetic intervention!”
We have no reason to disbelieve the medical opinion of Sir Ganga Ram Hospital as reproduced above. In view of the medical condition of the complainant, we do not agree with the OP that bariatric surgery conducted on the complainant was a cosmetic surgery.
7. Complainant has claimed Rs. 4,00,750/- towards reimbursement under mediclaim policy. In Para 10 of the complaint he has pleaded that he made a payment of Rs. 4,57,531/- to the hospital after discharge. Complainant had not explained as to how the sum of Rs. 4,00,750/- is claimed since the said policy was issued for an amount of Rs. 3,50,000/-.
In Para 9, Page 4 of the complaint complainant himself has pleaded that the OP is liable to reimburse the amount to the amount of Rs. 3.50 lacs which is the assured sum under the Mediclaim Policy in question.
The Mediclaim Policy in question restricts the liability of the OP to 50% of the sum insured as per Note (a), Page 2 of the policy.
Said issue arose before State Commission in National Insurance Co. Ltd. vs. Jimmy Dali Bharucha and vide its daily order dated 06.05.2015 it observed that:
“Upon considering rival contentions and perusing the record we concur with the finding of the fact recorded by trial forum for the reason that, Note (a), which reads as, “Company’s liability would arise if the treatment or disease or injury contracted / suffered is incepted during the policy period. Total expenses incurred for any illness is limited to 50% of Sum Insured per family. Company’s liability in respect of all claims admitted during the period of insurance shall not exceed the Sum Insured mentioned in the Schedule.”, appears to be unilateral in nature and non-executable in character otherwise, there will be no meaning for mentioning insured sum of Rs, 2,00,000/- or more when the Opponent No.1/Insurance Company recovers the premium for the said amount.”
8. In view of above the complaint is allowed. OP is directed to pay a sum of Rs. 3,50,000/- as reimbursement of treatment expenses to the complainant under the Mediclaim policy in question, Rs.25,000/- as litigation expenses and Rs.25,000/- towards compensation for causing mental agony. The above said amount shall be paid within 30 days from the date of receipt of this order failing which 9% interest per annum shall be payable from the date of order till the date of payment. Copy of this order be sent to the parties as statutorily required. File be consigned to record room.
Announced on Day of 2019.
