BEFORE:

HON’BLE MR. SUBHASH CHANDRA, PRESIDING MEMBER

HON’BLE DR. SADHNA SHANKER, MEMBER

For the Appellant         Mr Pradeep Nawani, Advocate with Appellant

                                IN PERSON

For the Respondent      Ms Aakriti Goel, Advocate      

ORDER

PER SUBHASH CHANDRA

1.      This appeal under Section 51 the Consumer Protection Act, 2019 (in short, the “Act”) is directed against the order dated 18.01.2023 of the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, “State Commission”) in Complaint no. 40 of 2021 disallowing the complaint.

2.     We have heard the learned counsel for the parties and perused the records. The delay of62 days in the filing of the appeal was considered in light of the application seeking condonation of the delay. For the reasons stated therein, the delay was condoned in the interest of justice.

3.     The relevant facts of the case, in brief, are that the appellant who had purchased a health insurance policy called New India Floater Mediclaim (in short, “Policy”) from the respondent was denied the benefit of re-imbursement under it for treatment of Stage IV Neuro Endocrine Cancer detected on 31.10.2020 at the Rajiv Gandhi Cancer Institute and Research Centre, New Delhi (RGCIRC) which prescribed chemotherapy every 28 days and which treatment commenced on 07.11.2020. A claim of Rs 1,02,867/- was repudiated by the respondent on grounds of exclusion under the policy as the treatment through injection Sandostatin was held to not be a treatment but a prescription of a growth hormone which was to be administered as a non-listed day care procedure. The complaint filed was disallowed by the State Commission on the ground that the complaint did not fall under the pecuniary jurisdiction of the State Commission and holding that ‘hospitalization’ implied stay in the hospital for over 24 hours unless day care was permitted under the Policy and the treatment through Sandostatin injection did not specifically mention ‘chemotherapy’. This order is in challenge before us.

4.      The short issue for consideration in the instant appeal is whether the State Commission erred in holding that the complaint was outside the purview of its pecuniary jurisdiction and whether treatment for Stage IV Neuro Endocrine Cancer as prescribed by the RGCIRC was a day procedure that was excluded under the Policy.

5.      On behalf of the appellant it was argued that as per prescription dated 31.10.2021 issued by the RGCIRC under the signature of the consulting doctor it had been stated that he had been diagnosed with Stage IV Neuro Endocrine Ttumour for which he would need Chemotherapy (injection Sandostatin LAR) every 28 days as per treatment protocol. It had also been certified as per prescription slip issued by the RGCIRC dated 17.07.2021 as under:

To certify that above mentioned patient is suffering from Stage IV Neuro Endocrine tumour which is a type of slow growing cancer. The drug Sandostatin Receptor Blocker Sandostatin LAR which is being used is not a growth hormone rather it blocks the Receptor Samatostatin and decrease the growth of cancer cells. The tumour is malignant.

Therefore, it was contended that the treatment for neuroendocrine cancer which was prescribed to be treated by Sandostatin injection was not excluded under Clause 2.8.1 of the Policy as per which the diagnosis of cancer must be supported by histological evidence of malignancy in 2.8.1 (I) and neuroendocrine cancer was not excluded in the list provided under Clause 2.8.1 (II) (i) to (ix). It was further contended that it had been certified under Clause 2.24 that chemotherapy was “medically necessary” as per which, in terms of the policy, “any treatment, tests, medication or stay in hospital or part of a stay in hospital which is required for the medical management of the illness or injury suffered by the insured as prescribed by a medical practitioner and conforming to the professional standards widely accepted in international medical practice or by the medical community in India was eligible to be reimbursed”. It was therefore argued that the treatment by Sandostatin injection was as per medical protocol for Neuro Endocrine Cancer Stage IV which the appellant was suffering from and was covered under the Policy in terms of the standard for medical treatment through part stay in a hospital. 

6.      Reliance was placed by the appellant on the judgement of the Hon’ble Supreme Court in Texco Marketing Pvt. Ltd. Vs. Tata AIG General Insurance Co. Ltd. & Ors., Civil Appeal no. 8249 of 2022 decided on 09.11.2022 which had held as under

An exclusion clause has to be understood on the touchstone of the doctrine of reading down in the light of the underlining object and intendment of the contract. It can never be understood to mean to be in conflict with the main purpose for which the contract is entered. A party who relies upon it shall not be the one who committed an act of fraud, coercion or misrepresentation particularly when the contract, along with the exclusion clause is introduced by it. Such a clause has to be understood on the prism of the main contract.

Reliance was also placed on the ratio laid down by the Hon’ble Supreme Court in Canara Bank vs M/s United India Insurance Co. Ltd., (2020) 3 SCC 455 which held that:

21. Provisions of policy must be read and interpreted in such manner so as to give effect to reasonable expectations of all parties including insured and beneficiaries. Coverage provisions should be interpreted broadly and if there is any ambiguity, same should be resolved in favour of insured. On the other hand, exclusion clauses must be read narrowly.

A similar view was also taken by the Apex Court in Manmohan Nanda Vs United Insurance Co Ltd., in Civil Appeal no. 8386 of 2015 decided on 06.12.2021.

7.      Per contra, the contention of the respondent insurance company is that the claim for Rs 1,02,867/- of the appellant under the Floater Mediclaim Policy for Rs 10,00,000/- was repudiated as per Clause 2.15 of the Policy on 01.01.2021 as per which “hospitalisation” meant admission as an in-patient for a minimum period of 24 consecutive hours except for specified procedures/treatments that were excluded, which could be for less than 24 consecutive hours. In view of the fact that the appellant was hospitalized for less than 24 hours when being administered Sandostatin injection. It was contended that Sandostatin injection was not a chemotherapy drug but was widely used to slow down growth of malignant cells and was a day care procedure. It was also contended that apart from Sandostatin, no other standard chemotherapy was advised to the appellant. Therefore, the State Commission had rightly held that the “administration of this drug to be as chemotherapy is perhaps a misnomer”. Hence, it was contended that no deficiency can be established on part of the respondent insurance company and theat the order of the State Commission be upheld as the appellant was abusing the process of law under a beneficial legislation.  

8.      From the foregoing it is manifest that the State Commission has held that the complaint filed before it was barred on grounds of jurisdiction on pecuniary grounds and thereafter proceeded to adjudicate it on merits. The Hon’ble Supreme Court has held in a catena of cases that once a matter is ousted on preliminary grounds, it should not be adjudicated on merits. The State Commission has clearly fallen in error on this account in deciding the matter on merits after holding that the complaint was barred on ground of pecuniary jurisdiction. The impugned order is therefore liable to be set aside.

9.      However, we are also cognizant of the facts that the issue at hand pertains to an appellant who is in Stage IV of a terminal disease (Neuro Endocrine Cancer) and ousting him on technical grounds and relegating him to the District Forum would tantamount to putting him in the unenviable position of contesting a matter for medical reimbursement while suffering from a terminal disease. For this reason, the appeal is adjudicated in the interest of justice.

10.    In light of the foregoing discussions, it is held that the Policy conditions do not exclude chemotherapy as a treatment for cancer. The respondent has also not disputed that the appellant is suffering from cancer and that he has been prescribed chemotherapy. It is the respondent’s case that Injection Standostatin is not a drug for chemotherapy as it is a therapy for growth hormones. No expert opinion for the same has been brought on the record except for such a bald claim. On the other hand, the appellant has placed a medical prescription from the treating oncologist at the Rajiv Gandhi Cancer Institute and Research Centre, New Delhi which is a premier centre for cancer treatment, that the appellant is a patient of Neuro Endocrine cancer, has a tumour which is malignant and has been prescribed Chemotherapy as per medical protocol through administration of Injection Sandostatin Receptor Blocker Sandostatin LAR with the objective of blocking the Receptor Samatostatin to decrease the growth of cancer cells and not as a growth hormone. The repudiation of the claim for reimbursement by the respondent is patently contrary to this specific medical opinion and cannot be considered justifiable. The finding of the State Commission supporting the respondent’s contention also cannot be accepted for this reason.

11.   As regards the issue of the claim not being admissible on the ground of hospitalization having been for less than 24 hours, the contention of the respondent can not be supported in light of Policy condition 2.24 that makes it explicit that “hospitalization” includes stay in hospital or part of a stay in hospital which is required for the medical management of the illness as per the professional standards widely accepted in international medical practice or by the medical community in India was eligible to be reimbursed. Therefore, even a day procedure for chemotherapy in the instant case is, in our considered opinion, an admissible reimbursement and should be reimbursed under the Policy. The respondent has manifestly erred in repudiating the claim on an erroneous interpretation of the Policy condition. The State Commission has also erred in holding a similar view. We are inclined to respectfully agree with law laid down by the Hon’ble Supreme Court in Texco Marketing Pvt. Ltd. (supra) and Canara Bank (supra) and to hold that the Policy has to be read holistically and constructively in favour of the insured          .

12.    In view of the foregoing, this First Appeal is liable to succeed. Accordingly, the appeal is allowed, and the order of the State Commission is set aside with the following directions:

(i)     Respondent shall pay the claim amount of Rs 1,02,867/- with interest @ 9% p.a. from the date of the filing of the complaint within 4 weeks of this order failing which the same shall be paid with interest @ 12% p.a. till realization;

(ii)    Respondent shall also pay the appellant litigation cost of Rs.25,000/- along with the above;

(iii)    Any other claims for reimbursement, in case preferred, shall be processed expeditiously by the respondents in terms of the order including for pre and post hospitalization under the Policy.             

 13.  Pending IAs, if any, stand disposed of with this order.