Punjab

Ludhiana

CC/20/122

Satish Kumar - Complainant(s)

Versus

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

Dvan Verma Adv.

22 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:122 dated 04.08.2020.                                                         Date of decision: 22.02.2024.

 

Satish Garg son of Late Shri Kesho Ram Garg, resident of 533, Sita Nagar, Near Bus Stand, Ludhiana.                                                                                                                                                              ..…Complainant

                                                Versus

1. The Oriental Insurance Company Ltd., Having its registered & head office at A-25/27, Asaf Air Road, New Delhi-110002.
2. The Oriental Insurance Company Ltd., Having its office at D.O. No.1, Gill Chowk, Opp. C & W Office, Ludhiana.
3. Mohak Hi Tech Speciality Hospital (Unit of Bhandari Hospital & Research Centre), MS Campus Indore = Ujjain Stato Highway, near MR-10, Crossing Sanwor Road, INDORE M.P. 45355.

…..Opposite parties 

Complaint Under section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants            :         Sh. Devan Verma, Advocate.

For OP1 and OP2          :         Sh. G.S. Kalyan, Advocate.

For OP3                         :         Exparte.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that the complainant availed services of OP1 and OP2 by procuring mediclaim policies from the last more than 10 years continuously started from the year 2008. According to the complainant, he obtained medical insurance policy from OP1 and OP2 way back in 2008-09 for requisite consideration paid having insured value of Rs.4,00,000/- which he got renewed every year without any gap or break from OP2 and lastly paid the premium of Rs.18,291/- without any break. The complainant stated that he was suffering from so many diseases and he approached OP3 during the validity of the insurance policy of Rs.4 lakh and for proper diagnosis, doctor after diagnosis told  the complainant that he is a case of Metabolic Syndrome, T2DM, HTN, OA, OSA and Hypothyroid without history of any illness and advised for urgent metabolic surgery for weight loss and warned him that in case of operation will not be done then it will be dangerous to his life. Then the complainant was admitted with OP3 for the said problems leading to morbid obesity causing changes in life style. After admission, the complainant got surgery and his operative procedure was that “Lap Banded One Anastomosis gastric Bypass done under general anesthesia on 22.02.2019”. The complainant further stated that the Medical Council of India also certified that “Bariatric Surgery is a Gastrointestinal non Cosmetic Surgery under the rubric of surgical gastroenterology and not a plastic surgery”. The condition of the complainant would have worsened causing life threatening consequences without surgery on 22.02.2019. The Morbid Obesity was a serious disease that might be associated with severe life threatening complications  and the surgery by OP3 was done for saving his life and not for cosmetic purpose. The complainant lodged complaint within time limit with OP1 to register claim of Rs.2,33,710/- along with bills but on 29.05.2019 the complainant received letter from the OPs wherein reply was given towards the claim of the claimant that the claim is not tenable. The complainant further stated that non-payment of claim of Rs.2,33,710/- amounts to deficiency in service and unfair trade practice on the part of the OPs. Moreover,  the policy was in its 10 years of continuous cover and condition of 24 months  is not applicable and further the surgery was important to save his life and not for cosmetic purpose. No opportunity of being heard was provided to him before repudiating his claim by OP1 and OP2. The complainant claimed to have approached the OPs several times but did not receive any satisfactory reply. In the end, the complainant has prayed for issuing direction to the OPs to pay Rs.2,33,710/- along with compensation of Rs.1,00,000/- and misc. expenses of Rs.22,000/-.

2.                Upon notice, none turned up on behalf of OP3 and as such, OP3 was proceeded against exparte vide order dated 27.05.2022.

3.                Upon notice, OP1 and OP2 appeared and filed joint written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability of the complaint; concealment of material facts, lack of cause of action etc. OP1 and OP2 stated that the complainant approached them for availing mediclaim insurance policy for his family and entire terms and conditions were explained to him and after understating the terms and conditions, the complainant filled proposal form. For obtaining mediclaim policy from them vide policy No.233902/48/209/2809 w.e.f. 28.08.2018 to 27.08.2019 which the complainant got renewed from time to time. OP1 and OP2 further stated that on receipt of claim intimation from the complainant regarding the hospitalization (Date of Admission 20.02.2019, Date of Discharge : 27.02.2019) of the complainant at Mohak Hi Tech Bariatrics Weight Loss & Diabetes Robotic Surgery Centre, Indore with diagnosis Morbid Obesity, Type II Diabetes Mellitus, HTN, OA, OSA, Hypothyroid. OP1 and OP2 immediately registered, processed and entertained the claim of the complainant and handed over the claim file to its service provider Park Mediclaim Insurance TPA Private Limited for further processing of the claim in view of the policy terms and conditions. Park Mediclaim Insurance TPA Private Limited processed the claim of the complainant and returned the file to them vide letter dated 25.04.2019 with the recommendations, which are reproduced as under:-

"Mr. Sastish Garg was hospitalized at Mohak Hi Tech Bariatrics Weight Loss & Diabetes Robotic Surgery Centre, Indore from 20.02.2019 to 27.02.2019 with diagnosis Morbid Obesity, Type II Diabetes Mellitus, OSA, Hypothyroidism for which he underwent Lap. Banded One Anastomosis Gastric Bypass.

As per the available information, the patient is a known case of Type II Diabetes Mellitus, Hypertension OA, OSA, Hypothyroidism is admitted with weight Gain leading Morbid Obesity causing changes in life style.

Happy Family Floater policy does not cover the expenses incurred for the treatment of Obesity or condition arising there from (including Morbid Obesity) vide exclusion clause 4.20. Hence, this claim is not admissible."

OP1 and OP2 further stated that they processed the claim and repudiated the claim vide letter dated 29.05.2019 being not tenable. OP1 and OP2 further stated that exclusion clause 4.20 is permanent exclusion under the policy and such expenses are not payable even if the policy is renewed continuously for more than 10 years. Such conditions are not considered any ailment or disease and are essentially related to lifestyle/cosmetic/weight loss surgeries for which coverage is outside the scope of the policy. Further Happy Family Floater Policy does not cover the expenses incurred for the treatment of obesity or condition arising there from (including Morbid Obesity) vide exclusion clause 4.20.

                   On merits, OP1 and OP2 reiterated the crux of averments made in the preliminary objections. OP1 and OP2 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

4.                In support of his claim, the complainant tendered his affidavit Ex. CW1 in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of claim form Part-A, Ex. C2 is the copy of claim form Part-B, Ex. C3 is the copy of discharge summary, Ex. C4 is the copy of medical record of the complainant, Ex. C5 to Ex. C14 is the copy of  the bills/receipts, Ex. C15 is the copy of insurance policy w.e.f. 28.08.2018 to 27.08.2019, Ex. C16 is the copy of certificate issued by Mohak Hi-Tech Specialty Hospital, Ex. C17 is the copy of insurance policy w.e.f. 28.08.2019 to 27.08.2020 and closed the evidence.

5.                On the other hand, counsel for OP1 and OP2 tendered affidavit Ex. RA of Sh. Sukhwinder Singh, Senior Divisional Manager, The Oriental Insurance Co. Ltd., DO-II, Ludhiana along with documents Ex. R1 to Ex. R15, Ex. R20 to Ex. R22 is copy of  medical record/reports of SAIMS Hospital, Indore, Ex. R16 to Ex. R18 are the copies of indoor continuation sheet, Ex. R19 is the copy of medication charts etc., Ex. R23 is the copy of claim form, Ex. R24 is the copy of EGC report of SAIMS Hospital, Indore, Ex. R25 to Ex. R31, Ex R35 to Ex. R37 are the copies of bills/receipts, Ex. R32  is the copy of discharge summary, Ex. R33 is the copy of TPA Report, Ex. R34 is the copy of letter dated 25.04.2019 of TPA, Ex. R38 is the copy of insurance policy w.e.f. 28.08.2018 to 27.08.2019, Ex. R39 is the copy of terms and conditions of the policy, Ex. R40 is the copy of Repudiation letter dated 29.05.2019 and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.

7.                The complainant, a regular Happy Family Floater Policy holder since 2008-09 underwent Lap. Banded One Anastomosis Gastric Bypass surgery on 22.02.2019 during his hospitalization from 20.02.2019 to 27.02.2019 at Mohak Hi-Tech Specialty Hospital. The discharge summary is Ex. R32 = Ex. C3, the extract of which is reproduced as under:-

          “Diagnosis: Morbid Obesity, T2DM, HTN, OA, OSA, Hypothyroid.

Operation: ap. Banded One Anastomosis Gastric Bypass done under general anesthesia on 22.02.2019.

Summary of the case: 50 years old male patient K/C/O/ T2DM, HTN, OA, OSA, Hypothyroid is admitted with weight gain leading to morbid obesity casing changes in life style. Otherwise there is no history of any other significant illness.

Condition on discharge: Post operative patient was doing will, kept in SICU under observation. Bowel bladder started functioning normally. Patient gradually switched to oral medication along with liquid diet as per Diet Regimen and tolerance of patient. Wounds are healthy, stay was uneventful. Patient is now discharged in a stable condition.”

The complainant incurred an amount of Rs.2,33,710/- on his medical expenses and vide claim form Ex. C1 and Ex. C2 = Ex. R23 submitted his claim for reimbursement along with supporting documents, bills etc. Ex. C3 to Ex. C14 = Ex. R25 to Ex. R31 and Ex. R35 to Ex. R37. However, vide letter dated 29.05.2019 Ex. R40, OP1 and OP2 declined to reimburse the claim of the complainant. Operative part of Ex. R40 reads as under:-

On close scrutiny of the papers submitted by you in support of your claim viz-a-viz the terms and conditions of the policy issued, we regret to inform you, that your claim is not tenable on the following grounds:-

1. Treatment of obesity or condition arising there from (including morbid obesity) and any other weight control programme, and similar services or supplies.

4.2 The expense on treatment of following ailments/diseases/surgeries, if contracted and/or manifested after inception of first policy are not payable during the waiting period specified below.

Xvii:  Hypertension 24 months

Xviii: Diabetes: 24 months

However, you are being given one more opportunity to substantiate your claim in view of the grounds of repudiation mentioned above before a final decision is taken at our end. Your representation/clarification must reach us within 2 weeks from the date of receipt of this letter.”

8.                The point of consideration arises whether the OPs were justified in declining/repudiating the claim of the complainant

9.                While repudiating the claim, the OPs have invoked clause 4.20 of the policy which is a permanent exclusion clause and the same is reproduced as under:-

“The company shall not be liable to make any payment under this policy in respect of any expense whatsoever incurred by any Insured Person in connection with or in respect of:

4.20 Treatment of obesity or condition arising there from (including morbid obesity) and any other weight control programme, and similar service or supplies.”

It is settled law that the terms of insurance policy have to be strictly construed as per the terms and conditions of the policy document which is a binding contract between the parties and nothing can be added or subtracted by giving a different meaning to the words mentioned therein. In this regard, reference can be made to 2023 LiveLaw (SC) 90 in National Insurance Company Ltd. Vs The Chief Electoral Officer and others whereby the Hon’ble supreme Court of India has made the following observations:-

“26. We would first like to elucidate the principles on which a claim under any insurance policy is examined. It is trite to say that the terms of the insurance policy are to be strictly construed.

27. The insurance contracts are in the nature of special class of contracts having distinctive features such as utmost good faith, insurable interest, indemnity subrogation, contribution and proximate cause which are common to all types of insurances. Each class of insurance also has individual features of its own. The law governing insurance contracts is thus to be studied in three parts, namely, (1) general characteristics of insurance contracts, as contracts; (2) special characteristics of insurance contracts, as contracts of insurance, and (3) individual characteristics of each class of insurance.

 28. Now turning to some of the judicial pronouncements, wherein it has been opined that the words used in a contract of insurance must be given paramount importance and it is not open for the Court to add, delete or substitute any words (Suraj Mal Ram Niwas Oil Mills (P) Ltd. vs. United India Insurance Co. Ltd.) 2010 SCC Online SC 1148. Insurance contracts are in the nature where exceptions cannot be made on ground of equity and the Courts ought not to interfere with the terms of an insurance agreement (Export Credit Guarantee Corporation of India Limited vs. Garg Sons International) 2014(1) SCC 686.

29. This Court in Vikram Greentech India Ltd. v. New India Assurance Co. Ltd.2002(5) SCC 599 reiterated that the insured cannot claim anything more than what is covered by the insurance policy. The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely. The clauses of an insurance policy have to be read as they are. Consequently, the terms 8 Justice K Kannan, Principles of Insurance Law Chapter 3 (Volume 1, 10th ed. 2017, pg. 31) 9 2010 SCC OnLine SC 1148 10 2014 1 SCC 686 11 (2009) 5 SCC 599 6 of the insurance policy, that fix the responsibility of the insurance company must also be read strictly.

30. In several other judgments, this court has held that the insurance contract must be read as a whole and every attempt should be made to harmonise the terms thereof, keeping in mind that the rule of contra proferentem does not apply in case of commercial contract, for the reason that a clause in a commercial contract is bilateral and has mutually been agreed upon.”

 

10.              The counsel for the complainant has relied upon 2015(2) CLT 318 (NC) in United India Insurance co. Ltd. Vs Sunil Gupta and another; 2016 (4) CPJ 378 (NC) in New India Assurance Company Ltd. and another Vs Anita Chaudhary and another and 2021 (3) CLT 172 (NC) in National Insurance Company Limited Vs Hiralal Girdharilal Choudhary. These judgments are not applicable to the facts of the case as rigor of the respective applicable terms and conditions in these citations were entirely different in its wording and context. Therefore, in the considered opinion of this Commission, it has to be held that the claim of the complainant has been rightly repudiated by OP1 and OP2.

11.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, keeping in view the peculiar circumstances, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                                       (Sanjeev Batra)

Member                                                     President    

 

Announced in Open Commission.

Dated:22.02.2024.

Gobind Ram.