Punjab

Moga

CC/17/33

Sunita Arora - Complainant(s)

Versus

Oriental Insurance Co. Ltd. - Opp.Party(s)

Sh. Sunil Jaiswal

20 Sep 2017

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 33 of 2017

                                                                                      Instituted on: 20.03.2017

                                                                                      Decided on: 20.09.2017

 

Sunita Arora aged about 48 years wife of S. Vijay Kumar, residents of Angad Nagar, House no.706, Ward no.16, Street no.1, Moga. Mob : 8427753200.

                                                                                ……… Complainant

 

Versus

1.       Oriental Insurance Company Limited, through its Branch Manager, G.T. Road, near Bus Stand, Moga.

 

2.       M.D. Health Care Service (TPA) Private Limited, Maxpro Info Park-D  38 1^st Floor, Industrial Area Phase-I, Mohali, Punjab, through its Manager.

 

3.       Punjab Government Employee and pensioners Health Insurance Scheme, through its Secretary, Health Punjab, Chandigarh.

 

 

 

                                                                           ……….. Opposite Party

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President

                   Smt. Vinod Bala, Member

                   Smt. Bhupinder Kaur, Member

 

Present:       Sh. Sunil Jaiswal, Advocate Cl. for complainant.

                   Sh. Jasvinder Singh, Advocate Cl. for opposite party no.1.

                   Opposite party nos.2 & 3 ex-parte.

 

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against Oriental Insurance Company Limited, through its Branch Manager, G.T. Road, near Bus Stand, Moga and others (hereinafter referred to as the opposite parties) directing them to pay mediclaim of Rs.2,40,000/- which was paid by complainant to Apollo Spectra Hospital on 31.03.2016 for Bariatric Surgery for the treatment of morbid obesity. Further opposite parties may be directed to pay Rs.2,00,000/- as compensation for mental tension and harassment suffered by the complainant and Rs.55,000/- as cost of the complaint with interest @ 18% p.a. from the date of payment of amount or from the date of became due till its realization or any other relief which this Forum may deem fit and proper be granted.

2.                Briefly stated the facts of the case are that being Punjab Government Employee complainant was insured with opposite party no.1 during the period of 2016 for which the Punjab Government has paid premium to opposite party no.1 covering all its employees, pensioners and their dependents. Punjab Government Employee and pensioners Health Insurance Scheme (PGEPHIS) issued ID card no.MD15-8427753200 to the complainant. On 6.2.2015, the complainant suffered some problem in her knee so that she was brought to Dr. Manjinder Jit Singh, MS Ortho, Civil Hospital, Moga who advised x-ray. After seeing x-ray the said doctor advised the complainant to reduce weight. On 21.02.2015, the complainant got check up from Dr. Amit Garg of Fortis Hospital, Mohali. At that time weight of the complainant was about 106 KG and she was suffering from type 2 diabetes for the last four years and she was taking regular medicines. She was also suffering from knee problem and other ailments. When Dr. Amit Garg checked up the complainant, he advised to control weight and she was also advised to morbid obesity/metabolic surgery. At that time her BMI 414 kg/M2 multiply condition. On 04.03.2015, complainant got her check up from CMC Hospital, Ludhiana from Dr. Vivek David who advised the complainant to replace knee as she was suffering from knee problems and complainant was diagnosed to have osteoarthritis of left knee and it was advised that she would require a total knee replacement for the left knee. On 20.08.2015, the complainant was suffered chest problem due to obesity, so she got her medical check-up from Dr. A.S. Sodhi of Moga and she was advised to reduce weight failing which she will have to suffer multiple disease. On 15.01.2016, complainant got her check-up from Dr. Amit Garg, who advised her metabolic surgery, due to unnecessary obesity, morbid obesity. Thereafter, on dated 04.03.2016 she again checked up by Dr. Amit Garg, Forties Hospital, Mohali at that time she was having weight of 106 kgs and the doctor advised her that in case she does not reduce her weight it will cause multiple problem for her. On 11.03.2016 complainant got her check-up from Dr. Atul Joshi, who referred her to Dr. Amit Garg for admission. On dated 28.03.2016, she got her check-up from Apollo Spectra Hospital, Apollo Speciality Hospital Private Limited, Delhi who advised her for metabolic surgery due to obesity. The complainant was admitted in Apollo Spectra Hospital on 28.03.2016 and she was discharged on 31.03.2016. Complainant was operated in Apollo Hospital by Surgeon Dr. Sukhwinder Singh Saggu, who issued certificate in this regard. The complainant shown the medical policy to that Hospital, but they advised to pay all amount. So in these circumstances, the complainant has to pay a sum of Rs.2,40,000/- to said hospital. After operation complainant submitted all the bills to the concerned department, but the same has been declined on the ground that Morbid obesity/Metabolic surgery is cosmetic surgery. The claim of the complainant has been repudiated by the opposite parties on the ground that it was a cosmetic surgery, which is not covered under the scheme of opposite parties. The said repudiation of the claim of the complainant is illegal and the same is liable to be set aside as claim of morbid obesity is covered under the mediclaim policy, because it is not a cosmetic surgery. The insurance policy as mentioned above covered various ailments and since the said health insurance policy was purchased by Punjab Government for welfare of its employees and for that Punjab Government has paid premium to opposite party no.1 on behalf of complainant being employee of Punjab Government, so in this way the complainant is a consumer of opposite parties. The complainant has to undergone surgery to survive her life from other diseases as the obesity of the complainant was increasing day by day and due to this life of the complainant was not sage. As per medical literature regarding morbid obesity is not cosmetic surgery. The complainant requested the opposite parties to admit this rightful claim, but all in vain. The aforesaid act of the opposite parties amounts to deficiency in service and trade mal practice.  Due to the act of opposite parties the complainant has suffered mental tension, harassment, agony and financial loss. Hence this complaint.

3.                Upon notice, opposite party no.1 appeared through counsel and filed written reply taking certain preliminary objections that the complaint is not maintainable; that the complainant has got no locus-standi; that no deficiency in service has been attributed to the opposite party and from the allegations in the complaint no deficiency in service is made out; that the claim of the complainant is barred by limitation and by the terms and conditions of the insurance policy.; that the complainant is not a consumer of the opposite party no.1 and there is no privity of contract between the complainant and opposite party no.1. Therefore, the application qua the opposite party no.1 is liable to be dismissed. The opposite party no.1 has not received any premium for the insurance from the complainant; that the complainant is liable to be dismissed on the ground that it is pre mature as the complainant has approached this court before exhausting all available remedies. There is an elaborate grievance redressal mechanism formulated by the State Government of Punjab for this policy. The details of grievance redressal mechanism are available in public domain on website:pbhelath.gov.in. But the complainant has not lodged her grievance there; that the complaint is absolutely false and frivolous. Complicated questions of law and facts are involved in the present complaint. Moreover, lengthy examination-in-chief and cross examination of the parties/witnesses are required in the complaint. So, the complaint is required to be decided by the civil court and as such this Forum has got no jurisdiction to entertain, try and dispose off the complaint; that the complainant has not approached the Forum with clean hands, rather he has wilfully concealed the material and patent facts from this Forum, while filing the present complaint which ipso-facto disentitles the complainant to seek any relief against the opposite party; that the claim of the complainant is non-payable as per PGEPHIS Tender Exclusion Clause 20A(s). The claim of the complainant has been rightly repudiated as per letter dated 15.05.2017 of MD India Health Insurance TPA Pvt. Ltd. observed:-

          "Having examined the claims papers it is observed that the claim arose to treatment of Plastic Surgery. As per PGEPHIS TENDER Exclusion clause 20A(5), Vaccination/Cosmetic or of aesthetic treatment: Vaccination: Incculation or change of life or cosmetic or of aesthetic treatment of any description and Plastic Surgery other than as may be necessitated due to an accident."

                   Therefore, the claim was rightly repudiated by the MD India Health Insurance TPA Pvt. Ltd. vide letter dated 15.05.2017. Morbid Obesity is not covered under the terms and conditions of insurance policy. Therefore, the claim of the complainant has rightly repudiated. The complaint is false, frivolous, baseless, vague and malicious, therefore, in the event of dismissal of the complaint, the opposite parties are entitled to special costs as provided under Consumer Protection Act. On merits, all other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with special costs has been made.

4.                Registered notice issued for the service of opposite party no.2 not received back either served or un-served. As such, after expiry of statutory period of 30 days, the opposite party no.2 was proceeded against ex-parte. Registered notice issued for the service of opposite party no.3 duly served. But despite that none had appeared on behalf of opposite party no.3. As such, opposite party no.3 was proceeded against ex-parte.

5.                In order to prove the case, complainant tendered in evidence his duly sworn affidavit as Ex. C-1 and copies of documents Ex.C-2 to Ex.C-59 and closed the evidence. 

6.                On the other hand, opposite party no.1 tendered in evidence affidavit of Sh.Mohan Singh Thakur, Senior Divisional Manager, Oriental Insurance Co. Ltd. Ex.OP-1/1 and copies of documents Ex.OP-1/2 to Ex.OP-1/4 and closed the evidence.

7.                We have heard ld. counsel for the parties and have very carefully gone through record placed on file.

8.                The case of the complainant is that she is employee of Punjab Government and as per Punjab Government all the Punjab Government employees are insured under Punjab Government Employee and Pensioners Health Insurance Scheme with opposite party no.1. On 06.02.2015 she suffered some problem in her knee and she consulted Dr. Manjinder Jit Singh, MS Ortho, Civil Hospital, Moga who after check-up advised the complainant to reduce weight, copy of the OPD slip is Ex.C-8. Thereafter, she further got check-up from Dr. Amit Garg of Fortis Hospital, Mohali on 21.02.2015 and at that time she was suffering from type-2 diabetes for the last four years and weighing about 106 kg. She was also suffering from other ailments and taking regular medicines. Dr. Amit Garg advised her to control weight and also advised for morbid obesity/metabolic surgery, copy of the prescription is Ex.C-9. She also got check-up from CMC Hospital, Ludhiana from Dr. Vivek David who advised the complainant to replace knee and complainant was diagnosed to have osteoarthritis of left knee and it was advised that she would require a total knee replacement for the left knee. On 20.08.2015, the complainant was suffered chest problem due to obesity, so she got her check-up from Dr. A.S. Sodhi, Moga, who also advised her to reduce weight and metabolic surgery otherwise she will have to suffer multiple disease, the report of Dr.A.S. Sodhi is Ex.C-15 and Ex.C-17. Thereafter she again checked up by Dr. Amit Garg, Forties Hospital, Mohali on 15.01.2016 and 04.03.2016 who advised her for metabolic surgery due to unnecessary obesity, morbid obesity, copy of the same is Ex.C-10. Dr. advised if she does not reduce her weight it will cause multiple problem of her. On 11.03.2016 complainant got her check-up from Dr. Atul Joshi, who referred her to Dr. Amit Garg for admission. On dated 28.03.2016, she got her check-up from Apollo Spectra Hospital, Apollo Speciality Hospital Private Limited, Delhi who advised her for metabolic surgery due to obesity. The complainant was admitted in Apollo Spectra Hospital on 28.03.2016 and discharged on 31.03.2016, where complainant was operated for his treatment and paid Rs.2,40,000/- to the said hospital, copy of the bill is Ex.C-4. After discharge the complainant lodged her claim for the reimbursement with opposite parties, but the same was declined on the ground that obesity, morbid obesity surgery is a cosmetic surgery and not covered under the policy. Opposite party no.1 repudiated the claim on false and illegal ground as the treatment taken by complainant is not a cosmetic surgery, rather it is for obesity and for saving the life of the complainant from further complications and covered under the policy. The opposite parties wrongly and illegally repudiated the claim of the complainant, which amounts to deficiency in service on their part.

9.                On the other hand, ld. counsel for opposite party no.1 argued that the complainant has no locus standi to file the present complaint. There is no deficiency in service and trade mal practice on their part. There is no privity of contract between the parties. However, they admitted that the complainant was insured with them under Punjab Government Employee and Pensioners Health Insurance Scheme. They further admitted that complainant lodged the claim for the reimbursement of his medical bills. They argued that as per terms and conditions, the claim of the complainant duly forwarded to TPA for their opinion and TPA i.e. opposite party no.2 vide their letter dated 15.05.2017 repudiated the claim of the complainant with remarks that they have examined the claim papers and it is observed that claim arose to treatment of Plastic Surgery and per PGEPHIS Tender Exclusion clause 20A(5), Vaccination/Cosmetic or of aesthetic treatment; Vaccination: Inccculation or change of life or cosmetic or of aesthetic treatment of any description and Plastic Surgery other than as may be necessitated due to an accident.". The claim of the complainant has rightly been repudiated by TPA as Morbid Obesity is not covered under the terms and conditions of the insurance policy. The complainant has filed false, frivolous and baseless complaint against the opposite parties and the same may be dismissed with costs.

10.              On it, ld. counsel for complainant argued that the treatment taken by the complainant is not a cosmetic surgery, rather it was for health problems to save the life of the complainant from further complications, which can threatened the life of the complainant. There is difference between cosmetic surgery and treatment taken by the complainant. The cosmetic surgery is aimed to improving the physical appearance of the person or to enhance the beauty, but in the present case, it is not for improving the physical appearance or enhancing the beauty, rather its aimed to ensuring that she did not develop complaint which might later prove to be life threatening. The complainant has to undergone surgery to survive her life from other diseases as the obesity of the complainant was increasing day by day and due to this life of the complainant was not safe. As per medical literature regarding morbid obesity is not cosmetic surgery. As per literature Obesity Vs Morbid Obesity it is provided as follows:-

"It is important to understand the difference between obesity and morbid obesity, which is considered as disease" thus morbid obesity is a serious disease that has been linked to shortened life expectancy, it leads to many alignments."

          He further put reliance on judgement passed by our Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled as United India Insurance Company Limited Vs Sunil Gupta and others, whereas, our Hon'ble National Commission held that Mediclaim policy- exclusion clause cosmetic or Aesthetic Treatment- whether bariatric surgery for morbid obesity was a cosmetic or aesthetic treatment which was excluded under the insurance policy held it was not aimed at improving the physical appearance of the complainant or to enhance his beauty it was aimed at ensuring that he did not develop complaint which might later prove to be life threatening finding recorded by District Forum regards nature of treatment taken by complainant could not be faulted with. Held that insurance company committed error in rejecting the claim relying upon the exclusion clause of the insurance policy.

11.              We have thoroughly gone through the file, evidence and arguments lead by ld. counsel for the parties. From the medical record produced by the complainant, it is clear that she got examined from different doctors of different hospitals from time to time, where the doctors advised her for obesity and morbid obesity surgery to reduce her overweight to avoid further complications and complainant undergone the treatment on the advise of doctors to reduce her overweight to avoid further health complications and to risk her life. In light of the above discussion and judgement passed by Hon'ble National Commission, New Delhi, we are of the considered opinion that the treatment taken by the complainant is not for improving the physical appearance or for enhancement of beauty and is not a cosmetic surgery, rather it is aimed to ensuring that she did not develop complaints, which may be later proved to be life threatening and not covered under the exclusion clause of the policy. We are of the considered opinion that opposite parties wrongly and illegally repudiated the claim of the complainant, which amounts to deficiency in service and trade mal practice on their part.

12.              In view of the above discussion, the present complaint stands allowed against opposite party nos.1 & 2 and dismissed against opposite party no.3. Opposite party nos.1 & 2 are directed to pay Rs.2,40,000/- spent by the complainant on her treatment with interest @ 9% per annum from 20.03.2017 i.e. from the filing of present complaint till final realization. Further opposite party nos.1 & 2 are directed to pay Rs.5000/-(Five thousand only) as compensation on account of mental tension, harassment and agony suffered by the complainant and Rs.3000/-(Three thousand only) as litigation expenses to the complainant. Compliance of the order be made within 30 days of receipt of the copy of this order, failing which, the complainant shall be entitled to initiate proceedings under section 25 & 27 of the Consumer Protection Act. Copy of the order be supplied to the parties, free of costs. File be consigned to record room.

Announced in Open Forum.

Dated: 20.09.2017.

 

                              (Bhupinder Kaur)                   (Vinod Bala)        (Ajit Aggarwal)

                                  Member                                  Member                 President