1.       By this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short “the Act”), the Complainant calls in question the correctness and legality of the order dated 04.03.2014, passed by the Maharashtra State Consumer Disputes Redressal Commission at Mumbai (for short “the State Commission”) in First Appeal No. A/12/150.  By the impugned order, while overturning the order dated 31.12.2011, passed by the District Consumer Disputes Redressal Forum at Nashik (for short “the District Forum”) in Consumer Complaint No. 197 of 2011, the State Commission has accepted the Appeal, preferred by the National Insurance Company Ltd., the Respondent herein (for short “the Insurance Company”) and, consequently, dismissed the Complaint.  By the said order, while partly accepting the Complaint, preferred by the Petitioner herein, the District Forum had directed the Insurance Company to pay to the Complainant a sum of ₹1,50,000/- towards Mediclaim Insurance Policy, along with interest @ 9% p.a. from 10.01.2011 till realization, besides ₹15,000/- towards mental harassment and ₹1,000/- as litigation costs.

2.       Succinctly put, the facts giving rise to the present Revision Petition, are:

2.1     The Complainant had obtained a Mediclaim Policy from the Insurance Company. The said Policy was valid between the period 27.09.2006 and 26.09.2007.  Thereafter, it was renewed by the Complainant from time to time, on making payment towards the premiums.  In this way, while the last renewed policy was valid between the period 27.09.2009 and 26.09.2010, due to sudden eruption of severe pain in the knees, on 14.06.2010 the Complainant was examined by one Dr. Arun Mullaji at Mumbai.  On local examination, it was found that there was swelling in the knees, Fixed Flexion Deformity (FFD) was 10^o and Range of Movements (ROM) was from 10^o to 100^o and varus was positive.  The provisional diagnosis was “Bilateral Osteo-arthritis Knees” (BIL-OA Knees).  He was advised to undergo Bilateral Total Knee replacement. Accordingly, on 29.06.2010 the Complainant was admitted in the Breach Candy Hospital at Mumbai.  On 30.06.2010 the said Doctor performed the operation and replaced the bowl of both the knees and the Complainant was discharged from the said Hospital on 03.07.2010.  Since for the said operation and medical treatment,  the Complainant had incurred expenditure amounting to ₹4,18,915/-, he preferred claim for reimbursement limited to the assured sum of ₹1,50,000/-  under the policy, with the Insurance Company, together with all the relevant documents.    

2.2     On submission of the claim form and other relevant documents by the Complainant, the Insurance Company appointed M.D. India Health Care Services (TPA) Pvt. Ltd., the Third Party Administrator to scrutinize the said claim.  Vide their letter dated 20.09.2010, the said TPA repudiated the claim, stating that, as per the policy terms and conditions, the claim fell in the Exclusion Clause 4.3 and the same was not payable. The said letter of the Third Party Administrator reads as under:

“Dear Sir/Madam,

This is regarding the claim lodged by you for patient, Mr. Surana Ajit Santokchand under mediclaim Policy No. 270701/ 48/09/8500000431, details mentioned above.  Our panel of Doctors have scrutinized the claim documents submitted by you.

The observations are as follows:

1.       Policy coverage for Mr. Surana Ajit Santokchand is for 4 Year/Years.

2.       Inception date of policy is 27-Sep-2006.

3.       Current policy is in fourth Year/Years.

4.       Current illness OSTEOARTHRITIS BOTH KNEE (sic) since Acute as per MMR Form.

5.       As per revised policy terms and conditions, Treatment for Joint replacement due to degenerative conditions. Age related osteoarthritis and osteoporosis are not payable for first four years of operation of the policy.  Hence claim is repudiated.

6.       As per Policy terms and conditions, claim is not payable, under Clause No. 4.3 (Please refer to policy copy for details).

In case you do not agree with decision, you may represent your case with additional documents within 15 working days.

You may also approach the Insurance Company for further information.  In case required, MD India will submit the photocopy of the claim within 15 working days of written application for return of documents.” (Underlined for ready reference)

2.3     For the sake of convenience, Clause 4.3 of the Exclusions in the policy in question is also reproduced below:

“4.     EXCLUSIONS

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:

                   4.3     During the first one year of the operation of the policy the expenses on treatment of Benign ENT disorders & surgeries like Tonsilectomy / Adenoidectomy / Mastoidectomy /  Typanoplasty.

                             XXXXX                   XXXXX                   XXXXX         XXXX

                             Treatment for Joint replacement due to degenerative conditions, Age related osteoarthritis and osteoporosis are not payable for first four years of operation of the policy.

                             If these diseases are pre-existing at the time of proposal, will be covered only after four continuous claim free policy years.”

2.4     Based on the aforesaid letter by the Third Party Administrator, the Insurance Company also issued a letter to the Complainant on 10.01.2011, stating that the claim file was being closed, as the claim was not payable under Clause 4.3, as per MD India letter.  On receipt of the said letter, the Complainant, vide his letters dated 03.03.2011 and 28.03.2011 again approached the Insurance Company and requested for review of the claim, stating that he had suddenly suffered the pain in his legs and, therefore, Clause 4.3 was not applicable to him.  In reply, the Insurance Company, vide its letter dated 01.04.2011, informed the Complainant that the reasons found by the Third Party Administrator for rejection of the said claim were correct and proper and, therefore, the claim could not be reviewed.

2.5     In the said background, alleging deficiency in service on the part of the Insurance Company in rejecting the claim, the afore-noted Complaint came to be filed before the District Forum. The Complainant had prayed for a direction to the Insurance Company to pay to him a sum of ₹1,50,000/- under the policy in question, along with interest @ 18% p.a. from 22.07.2010 till realization, besides ₹50,000/- as compensation for mental pain, torture, etc.   

3.       Upon notice, the Insurance Company contested the Complaint by filing its Written Version.  It was, inter alia, pleaded on its behalf that there was no deficiency in service on its part; it was true that the Complainant had taken insurance coverage for the assured sum of ₹1,50,000/-; but since the claim fell in the Exclusion Clause in the policy, viz. Clause 4.3, after thorough inquiry, the same was repudiated; the disease of the Complainant was pre-existing; the corrosion of joints is a process which takes several years and it is a degenerative disease; and, therefore, the contention of the Complainant that acute pain in his legs erupted suddenly was not correct.     

4.       On appreciation of the evidence adduced by both the parties before it, the District Forum found force in the submission of the Complainant and consequently, while partly accepting the Complaint, issued the afore-noted directions to the Insurance Company.

5.       Aggrieved by the said directions, the Insurance Company carried the matter further in Appeal to the State Commission. 

6.       On re-appreciation of the evidence adduced by the parties, the State Commission, as noted above, has reversed the order passed by the District Forum, observing thus:

“[6]    It is not in dispute that first policy was taken on 27/09/2006 and the Complainant had to undergo surgical operation on 30/06/2010 i.e. about three months before completion of a period of four years.  It is also not in dispute that the Complainant was not suffering from any such ailment when he first obtained the policy by filling up the proposal form.  The Complainant was about 48 years old when the first policy was taken.  Policy, which has been filed on the record by the Complainant show that it was issued subject to the exclusion of none.  However, it was also mentioned in the insurance policy that the insurance is subject to hospitalization and domiciliary hospitalization policy as attached.  Copy of this policy is filed on the record by the Insurance Company which contains relevant Clause No. (4.3), which reads as under:

XXX                                XXX                                XXX

[7]     District Forum, on the basis of the Discharge Card, held that the ailment had suddenly erupted. For an ailment like osteoarthritis or osteoporosis to suddenly erupt, there would have to be some incident.  However, the Discharge Card does not mention that any incident had triggered this osteoarthritis.  It would be difficult to hold that this ailment erupted suddenly.  To contend that because the Insured was say about 52 years of age at the time of his operation, the ailment could not have been age related may not be proper.  Had similar condition appeared say in a 16 year old, it may have been permissible to argue that it was not age related osteoarthritis.  Therefore, in absence of any material to show that ailment was triggered by any incident and it suddenly erupted, the District Forum could not have ignored Clause No. 4.3 of the terms and conditions of the policy.  In view of this we are unable to uphold the order passed by the District Forum, which is unsustainable in law.  We hold accordingly …”

(Emphasis supplied)

7.       Hence, the present Revision Petition. 

8.       I have heard Mr. Mohit Bhansali, learned Counsel appearing for the Complainant and Dr. Sushil Gupta, learned Counsel, representing the Insurance Company, and have also perused the documents, including the prescriptions on record as also the medical literature on the issue in hand.

9.       In support of his submission that the necessity to go in for knees replacement arose because of spontaneous acute pain and swelling in the knees and, therefore, it could not be said to be a case of age related Osteoarthritis, hit by the Exclusion Clause 4.3, learned Counsel for the Complainant heavily relied on the dictionary meaning of the terms “acute” and “chronic”.  According to the dictionary, the word “acute” means an illness coming sharply to a crisis; severe and often contrasted with “chronic”, which means an illness persisting for a long time.  It was asserted that since in the Mediclaim Medical Report (MMR), the attending Doctor had recorded that the disease suffered by the Complainant was “acute”, the afore-noted Exclusion was not attracted and, hence, the claim preferred by the Complainant could not be rejected on the ground that the joint replacement was required because of age related Osteoarthritis, within the first four years of operation of the policy, as stipulated in the said Exclusion Clause.   

10.     Per contra, Dr. Gupta, while supporting the view taken by the State Commission, submitted that it is clear from the diagnostic reports, indicating development of varus deformity and FFD of 10^o     and ROM from 10^o to 100^o in place of 0^o to 135^o, that it was a case of chronic Osteoarthritis, necessitating total knee replacement and, therefore, the claim was squarely covered under the afore-noted Exclusion Clause 4.3.  It was submitted that the total knee replacement is recommended in a “chronic stage” and not in the “acute stage” for which conservative treatment in the form of pain killers and knee braces etc. are advised.

11.     Having bestowed anxious consideration to the facts at hand with reference to the diagnostic reports and the medical literature, I am of the opinion that this Revision Petition is bereft of any merit.

12.     It is true that the cause for Osteoarthritis cannot solely be due to wear and tear.  Dr. Manal Hasan in his Article “Clinical features and patho-genetic mechanisms of osteoarthritis of the hip and knee” has pointed out that “Degenerative arthritis” is often used as a synonym for osteoarthritis, but osteoarthritis is not the result of a bland degenerative process; rather, osteoarthritis involves both degenerative and regenerative processes.  In the same Article, the writer has noted that loss of cartilage of the knee can lead to malalignment of the leg with a varus deformity or bow-legged positioning of the leg being evident.  This angulation of the knee applies to medical compartment osteoarthritis of the knees.  Less commonly, patients may present with a valgus or knock-knee deformity, indicative of more advanced disease in the lateral compartment of the knee.

13.     In the instant case, the diagnosis of the disease the Complainant was suffering from, revealed presence of varus deformity, FFD and Restricted Range of Movement (RRM), all signs of chronic osteoarthritis and, therefore, he was advised Bilateral Total Knee replacement.  In light of these afore-noted symptoms, I am inclined to agree with the stand of the Insurance Company that the knee replacement was due to age related osteoarthritis and hence the afore-extracted Exclusion Clause (4.3) was attracted as the said procedure was admittedly performed within four years of operation of the policy.  In that view of the matter, I do not find any jurisdictional error in the order impugned in this Revision Petition, warranting interference in the limited Revisionary Jurisdiction vested in this Commission. [See :Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. – (2011) 11 SCC 269].

14.     Resultantly, the Revision Petition fails and is dismissed accordingly, leaving the parties to bear their own costs.