PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT

1) By this complaint the Complainant has prayed that the Opposite Parties be directed to pay Rs.4,42,842.25 with interest @ 18% p.a. from 01/10/2011 till its realization towards the claim for surgery. The Complainant has further prayed that the Opposite Parties be directed to pay Rs.5,00,000/- towards compensation for causing mental agony and harassment. The Complainant has also prayed legal charges incurred by the Complainant of Rs.30,000/- for this complaint.

2) According to the Complainant, She was insured by the Opposite Party No.1 under Policy No.124700/48/2010/3976 during the relevant period of the treatment she had obtained. The Opposite Party No.2 is service provider and agent of the Opposite Party No.1. It is alleged that on or about 20/03/2010 at Max Health Care, New Delhi, the Complainant was diagnosed with Umbilical Hernia and doctor consulted advised her to first get operated for RYGB i.e. Roux–en– y Gastric Bypass Surgery. It is the case of the Complainant that the doctor concluded that the Complainant could be operated for Umbilical Hernia only after the treatment of Morbid Obesity by a surgery for Roux–en-y Gastric Bypass Surgery. It is submitted that thereafter, the Complainant underwent Laparoscopic Roux-en-y Gastric Bypass Surgery on 04/05/2010 at Max Healthcare Delhi as necessary first for operation of Morbid Obesity. The Complainant was discharged from the hospital on 10/05/2010. It is alleged that the Opposite Party denied the cashless facility and therefore, all the bills of the said Max Healthcare had to be paid by the Complainant.

3) According to the Complainant, on 18/06/2010 the Complainant submitted all bills related to the above treatment of Rs.4,42,542.25 to the Opposite Party No.2. The Opposite Party No.2 however, rejected the claim by letter dtd.07/07/2010 on the ground that it was not admissible as it falls within the clauses 4.3 and 4.19 as specified in Mediclaim Policy. Thereafter, the Complainant forwarded the copy of the certificate issued by Max Devki Devi Heart and Vascular Institute (a unit of Devki Devi foundation) New Delhi alongwith the Complainant’s advocate. It is submitted that from the said certificate. It was explained that the Complainant was suffering from Umbilical Hernia for definitive management of which, the treatment of Morbid Obesity was must and inevitable and without which Umbilical Hernia cannot be treated. It is submitted that thus, the treatment of Morbid Obesity was not independent one but was a part and parcel of necessary for the main disease of the Umbilical Hernia. According to the Complainant, the Complainant has now already undergone the treatment of Morbid Obesity for which claim for reimbursement had been lodged with the Opposite Parties by the Complainant vide letter dtd.18/06/2010. It is alleged that the Complainant after going thorough the first step of treatment of Morbid Obesity will go to the treatment of Umbilical Hernia after gap of some days of rest as medically advised. The Complainant has come out with the case that Morbid Obesity is not the main disease treated by the Complainant, but preliminary for the ultimate treatment of Umbilical Hernia. The Complainant has thus, claimed that the Opposite Parties wrongly denied the reimbursement under the flimsy ground that treating the treatment obtained by the Complainant of Morbid Obesity as independent treatment whereas, it was a part and parcel of Umbilical Hernia treatment and that amounts to deficient services on the part of the Opposite Parties. It is alleged that the Opposite Parties have wrongly rejected the claim vide its letter dtd.07/07/2010 and 03/01/2011. The Complainant has therefore, prayed for the reliefs as mentioned in para 1 of this order.

4) The Opposite Party No.1 contested the complaint by filing written statement. It is contended that the claim made in the complaint is not tenable in view of the terms and conditions of the policy. It is alleged that in discharge summary of the Complainant issued by Dr. C.M. Wavikar it was clearly mentioned that the Complainant was suffering from gross obesity and was subject to the surgery of the same. It is contended that the claim of the Complainant falls with the exclusion clause no.4.3 and 4.19. The Complainant underwent operation of Morbid Obesity and the Opposite Parties are not liable to pay any compensation for the treatment of obesity for condition arisen there from. The Opposite Parties have rightly repudiated the claim of the Complainant and the Opposite Parties are not liable to pay any amount as claimed by the Complainant. The Opposite Party No.1 has therefore, denied the claim and all the parawise allegations made in the complaint and it is prayed that the complaint be dismissed with compensatory cost.

5) The Opposite Party No.2 served but remained absent. The complaint therefore, proceeded ex-parte against Opposite Party No.2.

6) The Complainant has filed her affidavit of evidence. The Opposite Party No.1 has filed affidavit of G.R.M. Kazi, Divisional Manager in support of the contention of Opposite Party No.1. Both the parties filed their written arguments. We heard the argument of Ld.Advocate Shri. Rajendra Shah for the Complainant and Ld.Advocate Shri. Sanjay Mhatre for the Opposite Party No.1. We have perused the documents placed on record by both sides.

7) The Complainant’s Advocate pointed out that as per the certificate issued by Max Devki Devi Hearts and Vascular complaint for the treatment of Umbilical Hernia initially Morbid Obesity treatment was necessary. She made submission that thus, the contention raised by the Opposite Parties that the Complainant is not entitled for the reimbursement of the claim lodged by her cannot be accepted as legal and proper. In support of his submissions he relied the following orders passed by Ombudsmen and District Consumer Forum. The particulars of which are as under -

     1. Miss. Janki Janatkumar Sheth V/s. United India Insurance Co. Ltd., Case No.14-004-0394-08, decided by Ombudsmen, Jaipur on 28/07/2008.

2. Vishal J. Patel V/s. United India Insurance Co. Ltd., Case No.74/2010, decided by Rajkot District Consumer four on 19/011/2010.

3. Consumer Education and Research Society V/s. Medsava Healthcare Complaint No.174/2001 decided by District Consumer Forum, Ahmedabad on 09/04/2010.

     4. Life Insurance Corporation V/s. Badri Nageshwaramma Fist Appeal No.605/96 decided by National Commission, decided on 17/01/2005.

5. New India Assurance Co. Ltd. V/s. P.P. Khanna, decided on 18/03/1987 by the Hon’ble National Commission.

      The Ld.Advocate also relied the information given in the book of Baliey’s and Loves short practice of surgery 25^th edition, edited by Norman S. Williams. He made submission that on the basis of the documents as well the certificate placed on record the Complainant has proved her claim in view of the observations in the aforesaid cases.

8) The Advocate for the Opposite Party No.1 Shri. Sanjay Mhatre pointed out that Dr. M.S. Kamth, Medico Legal Consultant of the Opposite Party No.1 has specially in his opinion submitted that obesity is not a disease as defined in the policy and the same has been excluded as per the terms and conditions of the policy and therefore, the claim is not payable by the Opposite Parties. Shri. Mhatre Advocate also pointed out the clauses no.4.3 and 4.19 of the policy and made submission that as the exclusion clauses are perfectly attracted in this case for rejection of the claim, the complaint is liable to be dismissed. He also submitted that as per the observations by the Hon’ble Supreme Court in the case of United India Insurance Co. Ltd. V/s. Mrs. Harchand Rai Chandanlal Civil Appeal No.6274/2004, decided on 24/09/2004 and Oriental Insurance Co. Ltd. V/s. Sony Cheriyan, Civil Appeal No.4913/97 decided on 19/08/1999. The terms of the agreement have to be strictly construed to determine the extent of liability of the Insurer. The Insured cannot claim anymore then what is covered by the insurance policy. He thus, submitted that in view of the said observations and the clauses referred above, the Complainant is not entitled for any reliefs and complaint is liable to be dismissed.

9) While considering the claim made in the complaint from the facts alleged by the Complainant as well as the document of discharge summary issued by Max Healthcare at page 32 the Complainant was diagnosed Morbid Obesity and she was treated for Morbid Obesity is not a disputed fact and the same is required to be taken into consideration. The Opposite Party No.1 vide letter dtd.03/01/2011 had informed to the Complainant treatment of obesity and condition existing there from including Morbid Obesity and any other program, services supplies are not payable as per permanent exclusion under policy clause No.4.19. In this context, if clause 4.19 of the terms and conditions of the policy if considered it says that –

“Treatment of obesity or condition arises there from (including Morbid Obesity) and any other weight control programme, services or supplies, etc.” are excluded. As per clause 4.3 (iii) Surgery of Hernia during the first two years has been excluded. Thus, we find that the contention raised by the Opposite Party No.1 that the Complainant is not entitled to the claim made in the complaint in view of policy clause no.4.19 and 4.3 is legal and proper. The submission of the Ld.Advocate for the Complainant relying on the decisions of Ombudsmen and District Consumer Forums referred above in our view cannot be accepted for grant of the claim made in the complaint in view of the observations of the Hon’ble Supreme Court in the cases relied by the Advocate for the Opposite Party No.1 which are referred above. The Hon’ble Supreme Court in the case United India Insurance Co. Ltd. V/s. M/s. Harchandraj Chandan Lal (Cited Supra) in para 12 to 14 have observed as under –

12.“Similarly in the case of Oriental Insurance Co. Ltd. V/s. Sony Cheriyan reported in (1999) 6 SSC 451 an insurance was taken out under the Motor Vehicle’s Act, 1988 in which their lordship observed :-

“The insurance policy between the Insurance and the Insured represents a contract between the parties. Since the Insurer undertakes to compensate the loss suffered by the Insured on account of risk covered by the insurance policy, the terms of agreement have to be strictly construed to determine the extent of liability of the Insurer. The Insured cannot claim anything more than what is covered by the insurance policy.”

13. “Similarly in the case of General Assurance Society Ltd. V/s. Chandumull Jain & Anr., reported in (1966) 3 SCR 500. The Constitution Bench had observed that the policy document being a contract and it has to be read strictly. It was “in interpreting documents relating to a Contract of Insurance, the duty of the Court is to interpret the wards in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however, reasonable, if the parties have not made it themselves. Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the Standard Policy for fire and extended to cover flood, cyclone, etc. had come into being.”

14. “Therefore, it is well settled law that the terms of contract has to be strictly read and natural meaning to be given to it. No outside aid should be sought unless the meaning is ambiguous.”

Considering the aforesaid observations though the advocate for the Complainant has relied the certificate of Max Devki Devi Heart & Vascular Institute, New Delhi, dtd.31/08/2010 and the information given in the book Baliey’s & Love ‘s Short Practice of Surgery but we find that it is not expected to go whether the Morbid Obesity is the disease or not and on that count as alleged by the Complainant her claim can be granted. In Clause 4.19 and 4.3 of the policy the treatment for Morbid Obesity and Surgery of Hernia has been excluded, therefore, in our view thus the Complainant is not entitled for the claim made in the complaint as observed by Apex Court. This Forum is not expected to go out side the terms of the policy, wherein the treatment obtained by the Complainant is specifically excluded. In the result the following order is passed –

O R D E R

1. Complaint No.106/2011 is dismissed with no order as to cost.

2. Certified copies of this order be furnished to the parties.