Delhi

East Delhi

CC/319/2014

VANDANA - Complainant(s)

Versus

OIC - Opp.Party(s)

13 Apr 2018

ORDER

            DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT of Delhi

              CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092  

                                                                                                   Consumer complaint no.-     319/2014

                                                                                                   Date of Institution               20/04/2014

                                                                                                   Order reserved on               13/04/2018        

                                                                                                   Date of Order                       15/04/2018                                                                                     

In matter of  

Mrs. Vandana Khanna, adult   

D/o  Late Sh K B Khanna   

R/o- 71A, East Azad Nagar,

Krishna Nagar, Delhi 110031…………………………...…………….Complainant

                                                                    Vs

1-The Oriental Insurance Co. Ltd. 

RO- A-25//27, Asaf Ali Road, New Delhi 110002

2- The Oriental Insurance Co. Ltd. 

BO- 9, Raj Block, Naveen Shahdara, Delhi 110032 …………..Opponents  

Complainant’s Advocate                 Mr BB Gupta & Mr S K Yadav   

Opponent 1 & 2 Advocate              Mr Rajnish Kumar

Quorum   Sh Sukhdev Singh           President

                  Dr P N Tiwari                   Member

                  Mrs Harpreet Kaur         Member                                                                                             

Order by Dr P N Tiwari - Member

Brief Facts of the case                                                                                                

Complainant at the age of 31+ years took Individual Mediclaim policy from OP2 from 26/11/2001 to 25/11/2002 for a sum of Rs one lac for herself and sum of Rs 20,000/- for her daughter (Anne1/K). Then sum assured was enhanced to two lacs for herself and Rs 40,000/- for her daughter (Anne. 1/J). Later in policy no 271702/48/2007/1238 having tenure from 26/11/2006 to 25/11/2007, the sum assured was further enhanced to Rs 2.5 lacs for herself and Rs 50,000/-for her daughter. Further in policy no. 271702/48/2011/1666 having tenure from 26/11/2010 to 25/11/2011, took personal accident cover from this policy year under silver plan (Anne. 1/B) which continued up to the claim year policy vide no. 271702/48/2013 having tenure from 26//11/2012 to 25/11/2113.    

Complainant got admitted at Sir Ganga Ram Hospital for leakage of urine (which was existing since one year) on 02/04/2013 and was discharged on 06/04/2013. The hospital (SRH) sent cashless request on 02/04/2013 (Anne. 2) for ‘Stress Urinary Incontinence – Lax abdomen with pendulous breast” and demanded Rs 3,44,000/,-but the same was denied by E Meditake, TPA of OP1 (Anne. 3). So, complainant after getting discharged from the hospital (Discharge Summary Anne. 4/B) paid treatment bill (Anne. 4E) for a sum of Rs 3,87,092/-(Anne. 4/E).

Thereafter complainant submitted her claim after completing all the required formalities to TPA of OP1 (Anne.4). After clarifications from the treating doctor and his medical opinion, claim was finally rejected by TPA on 06/08/2013 (Anne.7) under the exclusion clause 4.12 stating as “treatment arising from or traceable to pregnancy, child birth, miscarriage, caesarean section, abortion or complications of any of these including changes in chronic condition as a result of pregnancy”.

Aggrieved by the rejection letter from TPA, complainant subsequently sent two legal notices on 24/07/2013 through Mr Hemant Gupta and Md. Vandana Mishra Advocates (Anne. 5&6). When no reply was received from OP, filed this complaint and claimed a sum of Rs 2,50,000/- against Rs 3,87,092/-with 24% interest and Rs 5 lacs as mental agony.  

OP1 submitted their written statement on behalf of OP2 also and denied all the allegations put in complaint. OP submitted that policy in question was an Individual Mediclaim policy and was continued from 2001 onward and complainant had enhanced sum assured time to time. It was also stated that policy was when complainant’s age was less than 45 years, so on good faith policy was issued based on informations given in the policy proposal form.  

It was stated by OP that complainant’s claim was rightly rejected as per the terms and conditions of the policy. Here in this case, the claim was rejected under exclusion clause 4.12 which states as any treatment arising from or traceable to pregnancy, child birth, miscarriage, caesarean section, abortion or complications of any of these including changes in chronic condition as a result of pregnancy were not payable.

As per discharge summary, complainant had difficulty in controlling her urge of urination since last one year besides Lax abdomen and pendulous breast for which cosmetic surgery was done and liposuction and correction of breast with tightening of abdominal wall muscles besides TVT (tightening of bladder muscles around vaginal wall) were done which were the outcome of pregnancy, hence her claim was rejected. So, there was no deficiency in the services of OP or any unfair trade practice as alleged by the complainant, hence this misconceived complaint may be dismissed.  

Complainant submitted her rejoinder to the written statement and denied all replies given by the OP. It was stated that all the contents of her complaints were correct and true and she had regular mediclaim insurance cover since 2001 till date and had not taken any claim for her present complication. She had also submitted evidences on affidavit and reaffirmed herself on oath that the evidences annexed as Anne.1 to 11 were on record and were correct and true. It was also submitted that relevant medical text was also submitted for reference, hence her claim be paid.  

OP also submitted evidences on affidavit through Mr Khem Chand, Div. Manager with OP1 and stated on oath that their rejection was justified as per terms and condition of the policy under exclusion clause 4.12 where all the treatment related to traceable pregnancy and their complications even chronic manifestations were not payable. Here as per the discharge summary, incontinence of urine was corrected by surgical method (TVT) besides cosmetic surgery for breast and abdominal muscles were also done. So liposuction and any type of cosmetic surgery treatment cost were not payable by OP under their terms and conditions. Hence, this complaint may be dismissed.  

Arguments heard from both the party’s counsels and order was reserved.

We have gone through all the facts and evidences on record and observed that complainant’s vakalatnama was not signed by the defending advocates (Anne. 9). We have also gone thoroughly all the treatment documents submitted by the complainant along with the policies and terms and conditions. It was noted that complainant was defending on Mediclaim Floater policy terms and conditions whereas OP had submitted terms and conditions pertaining to the

Individual mediclaim policy which were applicable to the claim year policy. It was clear that the treatment was done under the claim year mediclaim policy for the chronic complications due to the pregnancy (clause 4.12) besides liposuction and breast tightening as cosmetic surgeries which comes under exclusion clauses.  

It was also seen that the treating doctor had given his own medical opinion supporting his line of Gyne surgery, but this opinion cannot be considered as it was neither independent nor by any other Gyne specialist surgeon or ever demanded by the parties, but opinion was given by treating doctor himself, hence it cannot be taken or considered. It is clear that if at all medical opinion is required by the parties then medical opinion may be taken from any allopathy doctor having basic knowledge of such subject and experience and or any independent specialist of the same field or by any medical board. Here neither complainant nor OP sought for any such medical opinion.

In reference to V Krishnan vs Nikhil Superspeciality Hospital judgment from Hon. Supreme Court, taking medical opinion is not mandatory in all alleged medical negligence cases except in complicated case, but merit has to be seen in all such cases by the Forum so we have analysed discharge summary and the terms and conditions of the claim year policy on the following points as under—

1. Whether Stress Incontinence for urine was traceable to Pregnancy?
2.  Whether Policy clause 4.12 was applicable in repudiating the claim?

WHETHER STRESS INCONTINENCE FOR URINE WAS TRACEABLE TO PREGNANCY?-

Urinary incontinence can also be a persistent condition caused by underlying physical problems or changes, including:

• Pregnancy and increased weight of the fetus can lead to stress incontinence.
• Childbirth
• Changes with age
• Hormonal changes
• Menopause  
• Hysterectomy
• Enlarged prostate
• Prostate cancer
• Obstruction

Ref.-

https://www.mayoclinic.org/.../urinary-incontinence/symptoms-causes/syc-20352808

FEMALE STRESS URINARY INCONTINENCE -

In order to understand why Stress Urinary Incontinence (SUI) occurs, a quick refresher course on the female urinary anatomy might be helpful. The bladder has two functions. The first is to store urine produced by the kidneys and the second is to contract and push the urine through the urethra. Controlling the flow of urine out of the bladder is the sphincter muscle. The nervous system detects when the bladder is ready to be emptied and tells the sphincter to relax, allowing you to pee. When there is any sort of abdominal stress on the pelvic organs—the bladder, vagina, uterus, and rectum—SUI can occur.

It is important to understand the difference between stress incontinence (SUI) and urge incontinence (UUI) as they are treated differently. While Urge incontinence (UUI) involves the sudden and unstoppable loss of urine, SUI is not accompanied by the sensation of a sudden urge to urinate. The underlying cause for SUI is different from that of UUI. SUI is caused by a weak sphincter muscle and/or pelvic floor. Some people have both SUI and UUI, known as . This means that they leak when they cough, sneeze, or exert pressure on their abdominal muscles; but they also feel the urgent need to go to the toilet and may not make it in time.

Specifically, there are two types of SUI: urethral hypermobility and intrinsic sphincteric deficiency (ISD). In the case of urethral hypermobility, the urethra shifts positions due to an increase in abdominal pressure. On the other hand, ISD refers to the inability to effectively seal off the sphincter, the ring of muscles whose main job is to remain tightened, keeping urine in the bladder. While there is no specific test for ISD, it is now generally believed that many women with SUI have at least some degree of ISD.

CAUSES- SUI is the most common occurring form of incontinence in women under the age of 60 and accounts for more than half the cases.

While pregnancy and childbirth heads the list for causes of SUI, there are other health factors that put you at risk. They include loss of pelvic muscle tone (often with aging), hysterectomy, nerve and muscle damage from birthing or surgical trauma, obesity, menopause, chronic coughing due to smoking and lung disease, anatomical predisposition, and repeated heavy lifting or high impact sports.

So it is clear that pregnancy is not a proximate cause of Stress Incontinence of Urine in females. Even after analyzing first policy which was from 2001, complainant had taken policy for herself and for her daughter who was over 10 years of age at the time of issuing the policy by OP and after seeing discharge summary, the present complaint (Stress Incontinence of Urine) was existing since one year and had increased for which complainant got admitted and corrective gyne surgery was done by TVT which is a standard corrective procedure. The cause of stress incontinence was given by the treating doctor as hormonal changes as Estrogen in menopausal age, such condition occur mostly after middle aged women (above 50 years).  

As far as breast correction in pendulous breast and liposuction of abdomen wall comes under cosmetic surgery and there was no consent for correcting such additional complications in complainant or any alternative line of treatment was written in treatment /discharge papers.  

We have also seen the effects of Estrogen hormones during menopausal age of a women. It has been seen that Estrogen hormone is essential for maintaining all the external and internal reproductive organs and system, but in many woman, production of Estrogen hormone decreases gradually and results in loosening of musculature of body, ligaments in body and irregular menstrual cycle, so many women prefer oral hormonal therapy to maintain their body, but results in many complications like pendulous breast, flabby abdominal musculature and other complications. But these are not proximate to the pregnancy.  

WHETHER POLICY CLAUSE 4.12 WAS APPLICABLE IN REPUDIATING THE CLAIM  -

By reading the exclusion clause 4.12 of terms and condition of Individual mediclaim policy submitted by OP as Ex RW1/1 which states as –

“any treatment arising from or traceable from pregnancy, child birth, miscarriage, caesarean section, abortion or complications of any of these including changes in chronic condition as a

result of pregnancy, the expenses on treatment, surgery are not payable if contracted or /and manifested during the currency of the policy.”

We have also seen clause 4.3 under sub clause xiv which states as –“Surgery of genitor urinary system excluding malignancy”, the treatment expenses will not be payable for two years.

So by analyzing these two clauses and sub clauses, neither policy was fresh nor complainant had taken any claim since long for Stress Incontinence of Urine which we have seen can occur due to various metabolic changes in the body of a person, but certainly not a proximate cause of pregnancy. Even treating doctor’s note stated that due to menopause and hormonal changes in the body could lead to loosing of abdominal muscles which can cause stress on urinary bladder or vagina leading to cystocele or rectocele. In all such diagnosis as complications, corrective surgery is done. Hence exclusion clause 4.12 is not FULLY applicable in this case.  

By seeing the claim amount which complainant has claimed as per the sum assured to the policy (Rs 2.5 lacs) against hospital bill, cannot be said to be as a part of treatment, so deduction shall be followed based on the terms and conditions of the policy for liposuction and cosmetic surgery of breast as under-

 1-Under clause 1.2(a)- Room rent shall be 1% of sum assured to be paid. Here deduction shall be for (31,000/- 10,000/-) 21,000/-(Anne. RW1/1 & Anne. 4D).  

2-Abdominal Plastic & cosmetic surgery charges Rs 17250/- + Liposuction and Breast correction charges Rs 16,845/-+Bilateral plastic surgery for breast reduction as Rs 53190/-+ dressing charges for these two procedures Rs 4360/-.

Hence, subtotal deduction would be Rs 21,000/+17250/+16848/+53190/+4360/=Rs 1,12,648/-.

So, we come to the conclusion that this complaint has some merit and so deserves to be allowed conditionally as under-

1. OP shall deduct non payable amount (Rs 1,12,648/-) from sum assured including CB if any and will pay to the complainant within 30 days from the receiving of this order.
2. Balanced amount shall be paid with 9% interest from the date of rejection of claim (06/08/2013) till realized.
3. We also award compensation for mental agony a sum of Rs 10,000/-.
4. If awarded amount is not paid within stipulated time, complainant shall be entitled to recover entire awarded amount with 9% interest till realized.   
5. There shall be no order to cost.

The copy of this order be sent to the parties as per regulation 18 of the Consumer Protection Regulation,2005 (in short the CPR) and file be consigned to Record Room the regulation 20(1) of the CPR.  

(Dr) P N Tiwari – Member                                                                  Mrs Harpreet Kaur- Member                                   

                                               Mr Sukhdev Singh - President