Order dictated by:

Sh.S.S. Panesar, President

1.       Sh.Vikram Singh Arora has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, on the allegations that  the complainant is the proprietor of M/s.Aya Singh & Sons which is situated at Hall Bazaar, Amritsar. The complainant is the peaceful and law abiding citizen of India. The complainant purchased one Medi Claim Policy from the Opposite Parties on 16.1.2015 vide policy No. 233300/ 48/ 2015/ 4621, vide cover Note No.CHD-C26065. The complainant had also earlier insured for the policy from 17.1.2014 to 16.1.2015 vide policy No.233300/48/2014/4152 which was in the name of S.Vikram Singh Arora, Ms.Aveen Arora and Ms.Tuhina Arora. Said insurance policy No. 233300/48/2015/4621, vide cover Note No. CHD-C26065 was for the period from 17.1.2015 to midnight of 16.1.2016. A sum of Rs.10 lacs was insured by the said policy. The gross premium of the said insurance policy was Rs.22,323/-. As the complainant purchased the said policy from Opposite Parties  and as such, the complainant is the consumer of the Opposite Parties  as defined under section 2 of the Consumer Protection Act.  The insurance policy was med claim policy and in the insurance policy, it has duly been mentioned that the policy shall pay hospitalization expenses for medical/ surgical treatment taken by the patient at any necessary check/ hospital in India. During the tenure of the above said insurance policy, the complainant got his treatment from Sankara Nethralaya Medical Research Foundation Registered, situated at 41/18, College Road, Chennai where the complainant undergone M.R.D.No.2827513 being a patient of Medical Research Foundation, Chennai, where he undergone treatment for Keratoconus as mentioned in the letter dated 14.2.2015. By the said Medical Research Foundation, Chennai the complainant was diagnosed as KERATOCONUS.  It is pertinent to mention over here that after the whole of the investigation, it was found that the complainant during diagnose of Keratoconus in both the eyes was advised as Prose Lens are treatment for Keratoconus vide letter dated 24.11.2014. The complainant vide MR No.2827513 got the above said treatment from Sankara Nethralaya Medical Research Foundation Chennai and spent Rs.1,20,000/- for getting his treatment and that amount was paid by the complainant vide cash memo dated 12.1.2015, order No.P028683 vide receipt No.CBill/14.12.2011/00002 to the said Medical Research Foundation, Chennai. The complainant attended the follow up visits in Sankara Nethralaya from 13.2.2015 to 30.3.2015. Copy of the letter issued by Dr.M.Rajeshwari dated 30.3.2015 is enclosed herewith. Thereafter, as per the terms and conditions of the policy, the complainant approached the Opposite Parties and on asking by the Opposite Parties, the complainant fulfilled all the requisite formalities for the insurance claim. The complainant many times called by the Opposite Parties  and the complainant produced the bills, receipts, prescription of medical record as demanded by the Opposite Parties. After completing all the formalities as required by the Opposite Parties when the complainant asked and requested the Opposite Parties  to pay him the insurance claim as per the terms of the insurance policy, but vide letter dated 17.8.2015, the Opposite Parties  repudiated the insurance claim of the complainant.                      Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Parties  may be directed to pay Rs.1,20,000/- to the complainant for the medical treatment of the complainant as per the terms of the policy alongwith interest @ 12% per annum from the date of getting treatment  till its realization.

b)      Opposite Parties  may be directed to pay Rs.1 lac as compensation for mental harassment and agony caused to the complainant.

c)       Opposite Parties may be directed to pay Rs.33,000/- as litigation expenses to the complainant.

Hence, this complaint.

2.       Upon notice, Opposite Parties No.1 and 2 appeared and contested the complaint by filing  joint written statement taking preliminary objections therein inter alia that  the complainant has filed a baseless, frivolous and an imaginary claim with an ulterior motive; the complainant has fabricated  false story with ulterior objectives to extract unlawful gains to which he is otherwise not entitled; the complainant is estopped by his own act and conduct to file the present complaint and the present complaint is not maintainable under the law and the same is liable to be dismissed; that the complainant does not fall within the ambit of consumer under section 2 of the Consumer Protection Act; that no cause of action arose to the complainant to file the present complaint as the averments of the present complaint does not depict any consumer dispute between the parties and the present complaint is pre-mature complaint; the present complaint is bad for non joinder of the necessary parties. The TPA E-Medi Tek who had scrutinised, processed the claim of the complainant has not been arrayed as Opposite Party in the present complaint. On merits, it is submitted that the complainant has lodged his claim with Opposite Parties  and the medical record of  the complainant is duly scrutinised and processed by TPA of Opposite Parties  and thereafter, the claim of the complainant is repudiated as per the terms and conditions of the policy especially, the condition as mentioned in Section 4-exclusions- the said clause of the insurance policy is reproduced hereunder for the kind perusal of this Forum. “The company shall not be liable to make any payment under this policy in respect of any expenses- whatsoever incurred by any insured person in connection with or in respect of (4.6) surgery for correction for eye sight, cost of spectacles, contact lenses, hearing aids etc.” Keeping in view the aforesaid terms and conditions of the policy, meaning thereby the clause section 4 read with 4.6 of the terms and conditions of the policy is fully applicable to the facts of the present case, and therefore, the claim of the complainant is  rightly repudiated vide repudiation letter dated 17.8.2015.           Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C5  and closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Parties tendered into evidence the affidavit of Sh. Gurdeep Singh, Divisional Manager Ex.OP1,2/1 alongwith copies of documents Ex.OP1,2/2 to Ex.OP1,2/10 and closed the evidence on behalf of the Opposite Party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       On the basis of evidence on record, ld.counsel for the Opposite Parties  Sh.Sobodh Salwan, Advocate has vehemently contended that in the case in hand, the insurance claim under the insurance policy, copy whereof is Ex.C3, has been rightly repudiated by  the Opposite Parties  because the eye surgery of the insured person made in this case was for correction of eye sight which was excluded under clause 4.6 of the insurance policy. Clause 4.6 of the insurance policy is reproduced for ready reference as under:-

4) Exclusions

“Surgery for correction of eye sight cost of spectacles, contact lenses, hearing aids etc.”

Repudiation letter accounts for Ex.C2. Ld.counsel for the Opposite Parties  has vehemently contended that the terms and conditions of the insurance policy in dispute are applicable on both the parties with equal force and no party can wriggle out therefrom. Reliance in this connection has been placed on  M/s. V.K. Karyana Store Vs. Oriental Insurance Co. Ltd. 2014(3) CLT page 47 wherein it has been held that it is well settled principle of law that parties are bound by terms and conditions of the insurance policy and none of the parties can seek any  relief beyond those terms and conditions. Further in Prema & Ors- Petitioners  Vs. Life Insurance Corporation of India Ltd.-Respondent 2006(3) CLT 574 (NC), it has been laid down that “we need not say that the Insurance Contracts are ‘uberrima fides’ and are founded upon utmost good faith. If any party fails to observe this utmost good faith, the contract may be avoided by the other. This legal proposition has been reiterated time and again by the Supreme Court, this Commission as well as by various High Courts”. The disease for which the complainant was  operated upon in the hospital is called Keratoconus which is not a disease and the same is covered under the surgery for correction of eye sight only. Reliance in this connection has been made to an extract of medical literature drawn from internet, copy whereof is Ex.OP1,2/9. “The treatment of Keratoconus is conducted through process known as PROSE devices which are made out of a highly gas-permeable hard plastic that allows oxygen to reach the cornea. They are designed to create a space between the prosthetic device, and they eye that is filled with sterile saline. The liquid remains in the reservoir providing constant lubrication by bathing the eye in a pool of artificial tears. Prosthetic devices are customized by specially-trained PROSE doctors and made on-site at the Boston Sight PROSE Manufacturing Lab. PROSE doctors use a proprietary Design to Fit® (DTF) CAD/CAM system to design each prosthetic device precisely to the patient’s unique eye shape.” As a matter of fact PROSE treatment for Keratoconus,  is undertaken to enhancing the eye sight. Since the treatment got by the complainant was not for the treatment of any disease, rather it was undertaken by the complainant for correction of the eye sight, therefore,  the repudiation has rightly been made  by the Opposite Parties and the complaint is liable to be dismissed and the same may be dismissed accordingly.

7.       But however, from the appreciation of the facts and circumstances of the case, it becomes  evident that the complainant suffered from disease known as Keratoconus for which PROSE treatment was required. It has been stated in medical literature, copy whereof is Ex.OP1,2/9 that PROSE creates:

*        A new transparent, smooth optical surface over the irregular, damaged or diseased cornea.

*        An expanded artificial tear reservoir that provides constant lubrication while maintaining necessary oxygen supply.

It clearly states that a new transparent, smooth optical surface over the irregular, damaged or diseased cornea is fitted which shows that the cornea is defective when this process of treatment is undertaken. If the cornea of an eye of the patient is damaged, the same can not be said to be a treatment for the correction of the eye sight. Damage will also denote some disease for which the specific treatment is required to be undertaken which is called PROSE. Simply because some artificial devices are fitted resembling eye lens, it can not be said that same devices are used for eye correction or for enhancement of eye sight. The treatment obtained by the complainant at the hospital pertained to curing of disease of disease & not for  eye correction and therefore, the repudiation made vide letter Ex.C2 dated 17.8.2015 is nothing, but deficiency of service on the part of the Opposite Parties. It is quite evident that  insurance companies show green pastures to the customers at the time of selling  the insurance policy and when it comes to payment of the insurance claim, they invent all sort(s) of excuse(s) to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.       

The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

In our considered opinion, the complainant is entitled to get an insurance claim of Rs.1,20,000/- on account of eye treatment  under the insurance policy No.233300/48/2015/4621 vide cover noted No. CHD-C26065. Since the Opposite Parties have been held to be deficient in service, therefore, the complainant is also entitled to compensation to the tune of Rs.5,000/-, besides that  the Opposite Parties  are also liable to pay Rs.2,000/- to the complainant on account of litigation expenses. The complaint stands allowed accordingly. Compliance of this order be made within 30 days from the receipt of copy of the order; failing which, awarded amount shall carry interest @ 6% p.a from the date of passing of order until full and final recovery. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

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