BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.429 of 2014

Date of Instt. 03.12.2014

Date of Decision :19.02.2015

Amrik Singh Chawla, aged about 57 years son of Partap Singh Chalwa R/o 50-51, Guru Teg Bahadur Nagar, Jalandhar.

..........Complainant

Versus

National Insurance Company Ltd 89, Bhagwan Mahavir Marg, BMC Chowk, Jalandhar through its Branch Manager.

.........Opposite party

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Complainant in person.

Sh.RS Arora Adv., counsel for opposite party.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite party on the averments that the complainant is regular mediclaim policy holder of National Insurance Company Ltd for last more then 5 years, which was a group of mediclaim policy and Geet Chawla daughter of the complainant was also insured under policy No.48/12/8500000783 valid from 31.3.2013 to 30.3.2014. Geet Chawla daughter of the complainant was hospitalized in Thind Eye Hospital, Jalandhar from 18.9.2013 to 19.9.2013 for an Eye surgery which was done for optical reason and to eleviate the problem of intolerance of glasses and contact lenses. In this treatment, an amount of Rs.70,989/- was spent by the complainant and thereafter a claim for reimbursement of the treatment expenses was lodged under the above policy on 19.9.2013 with the opposite party, but the opposite party wrongly and illegally declined the claim of the complainant vide its letter dated 4.6.2014 on the ground that the patient has undergone cosmetic surgery, which is excluded from the policy. Whereas infact the surgery undergone by Geet Chawla was not a cosmetic surgery but the treatment was taken due to seriousness of problem of both the eyes and was urgently required for avoiding its worsening in days to come, the refractive error was more then (-8) in both the eyes and the same has been certified by attending doctor. Thereafter the complainant lodged a complaint with consumer care at regional office of the opposite party at Chandigarh, which was also declined. Thereafter the complainant approached the office of Insurance Ombudsman, Chandigarh under the Redressal of Public Grievances Rules 1998 and Arbitration and Conciliation Act 1996 and vide order dated 4.8.2014 passed by the Insurance Ombudsman, Chandigarh, the opposite party was directed to settle the insured hospitalization bill for Rs.70,000/- on 60% basis only which is not enough. The Ombudsman did not even consider the medicine bill of Rs.989/- and the opposite party paid an amount of Rs.42,000/- on 5.9.2014 to the complainant but the complainant is entitled to the entire hospitalization bill for Rs.70,000/- and medicine bill of Rs.989/-. Even thereafter the complainant approached opposite party number of times and requested them to make the payment of the remaining amount i.e 40% of hospitalization charges which comes to Rs.28,000/- and medicine bill of Rs.989/- total remaining amounting of Rs.28,989/- but they lingered on the matter on lame excuses and ultimately refused to make any other payment to the complainant. On such like averments, the complainant has prayed for directing the opposite party insurance company to pay him Rs.28,989/- alongwith interest. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite party appeared and filed a written reply pleading that it would have been fair if the complainant before going to the Insurance Ombudsman, Chandigarh on 10.7.2014, had come to the Consumer Forum for his claim. The fact of the matter is that in presence of the complainant, his complaint was heard and decided by the Ombudsman on 4.8.2014. Had the complainant not accepted the order of the Ombudsman, the opposite party would not at all have implemented the order and paid Rs.42,000/- to the complainant. Ombudsman as a matter of concession to the complainant a policy holder of long past, allowed the payment of 60% of the amount on surgery despite their being a merit in the contention of the company. The contention was that the surgical treatment Keratotomy was undertaken by the patient owing to optical reasons which according to the company was a cosmetic surgery which fell under the exclusion clause of the insurance. No complaint is maintainable in the name of the complainant. The claim is that of individual, Geet Chawla and not of Amrik Singh Chawla. It denied the other material averments of the complainant.

3. In support of his complaint, complainant has tendered affidavit Ex.CA alongwith copies of documents Ex.C1 to C18 and closed evidence.

4. On the other hand, learned counsel for opposite party has tendered affidavit Ex.OA alongwith copies of documents Ex.O1 and closed the evidence.

5. We have carefully gone through the record and also heard the complainant in person and learned counsel for the opposite party.

6. It is not disputed that the complainant and his daughter Geet Chawla had obtained mediclaim policy from the opposite party insurance company. The daughter of the complainant was hospitalized in Thind Eye Hospital, Jalandhar from 18.9.2013 to 19.9.2013 for an eye surgery and spent Rs.70,989/- on the surgery and medicine. The complainant lodged claim with opposite party insurance company but it refused to pay the claim on the ground that patient had undergone cosmetic surgery which is not covered under the policy. The complainant approached Ombudsman who recommended 60% of the claim amount and the opposite party insurance company paid Rs.42,000/- to the complainant as per order of Ombudsman. It refused to pay remaining 40% amount of Rs.28,000/- and cost of medicine i.e Rs.989/-. Ex.C2 is order of Ombudsman. Counsel for the opposite party insurance company contended that patient has undergone cosmetic surgery which is not covered under the policy but inspite thereof as per orders of Ombudsman, the opposite party insurance company had paid Rs.42,000/- to the complainant. He further contended that the complainant has already approached Ombudsman and as such, he is estopped from filing the present complaint. We have carefully considered the above contentions advanced by learned counsel for the opposite party. The fact that complainant has approached Ombudsman is no bar to the filing of the present consumer complaint. The opposite party has refused to pay the remaining amount on the ground that patient has undergone cosmetic surgery which is not covered under the mediclaim policy. On the other hand, the complainant contended that in the present case, the eye surgery was done not for cosmetic purpose but for the purpose of treatment to eleviate the problem of intolerance of glasses and contact lenses. We have carefully considered the above version of both the parties. In the order of Ombudsman, it is mentioned that the complainant provided copy of medical opinion obtained by the company from one of doctor, Dr.Kapil Gupta who also opined in favour of payment of claim. Ex.C12 is report of Dr.Kapil Gupta who after referring to the circular of the insurance company has opined that claim is payable as refractive error was more than (-7). Ex.C3 is certificate issued by Thind Eye Hospital wherein it is mentioned as under:-

"This is to certify that Miss.Geet Chawla aged 20 years female D/o Sh.Amrik Singh Chawla was registered with us vide registration No.407063 on 31.8.2013. She complained of diminution of vision with intolerance of glasses and contact lenses in her both eyes since last 3 months. On examination her UCVA was finger counting at 3 meter in both eyes and BCVA was 6/6 in right eye with -8.00/Dsph and 6/6 in left eye with -8.25/Dsph. Her anterior and posterior segment was within normal limits and intra ocular pressure was also within normal limits. She was diagnosed to have High Myopia in her both eyes and was advised to undergone i-Lasik (Lasik with Intralase Method) with Custom Vue in both eyes. The laser treatment was done on 18.9.2013 in our hospital.

This surgery was done for optical reason and to eleviate the problem of intolerance of glasses and contact lenses. So it should not be considered as cosmetic surgery but treatment".

7. So from this expert opinion, it is evident that the surgery in this case was done to eleviate the problem of intolerance of glasses and contact lenses i.e for optical reason and not for cosmetic purpose. Ex.C-17 is circular/letter issued by opposite party insurance company wherein it is provided that claim may be passed for Keratotomy of insured having more than (-7) refractive error , developed after issue of insurance. In the present case from the medical certificate issued by Thind Eye Hospital Ex.C3 it is evident that the refractive error was more than (-7) in both the eyes. It is not a case of opposite party insurance company that the above refractive error developed after taking of the insurance policy. So as per own circular of the opposite party insurance company, the claim was payable in the present case as refractive error was more than (-7). Ex.C6 is discharge summary. In the discharge summary it is mentioned that payment received was Rs.70,000/-. The complainant has also placed on record bill for medicine Ex.C5 for Rs.989/-. So in the above circumstance, the opposite party insurance company was not justified in paying only 60% of the claim amount to the complainant and refusing to pay remaining amount of Rs.28,989/- to him. In the complaint, the opposite party has mentioned that daughter of the complainant is insured and not the complainant. The complainant, his wife and his daughter were all insured under the same mediclaim policy. Intimation regarding mediclaim was given by present complainant vide letter Ex.C14. The claim form Ex.C16 was also submitted by the present complainant. The present complainant also appeared before Ombudsman and this fact is evident from the order of the Ombudsman Ex.C2. The opposite party insurance company has paid the claim amount of Rs.42,000/- to the complainant. This fact is also evident from preliminary objection No.4 of affidavit Ex.OA of T.S.Rawat, Sr.Manager of opposite party insurance company. The complainant is not a stranger but father of the patient. So in the above circumstance, the objection of the opposite party insurance company in this regard is not tenable when the insurance company has paid Rs.42,000/- to the complainant out of total claim amount, it is estopped from alleging that he is not entitled to receive the remaining claim amount or to file the present complaint.

8. In view of above discussion, the present complaint is accepted and opposite party insurance company is directed to pay the remaining claim amount of Rs.28,989/- to the complainant alongwith interest from the date of making the remaining payment of Rs.42,000/- to the complainant till the date of payment. It is clarified that interest amount is being granted as compensation. The complainant is also awarded Rs.3000/- as litigation expenses. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

19.02.2015 Member President