DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Bharti Mahajan daughter of Shri vinod Kumar Mahajan, resident of House No. 3343/2, Sector 40-D, Chandigarh.

                   ---Complainant

Vs

[1]  Oriental Insurance Company Limited, SCO No. 1076-77, 1^st Floor, Sector 22-B, Chandigarh, through its Regional Manager.

[2]  Vipul Med Corp. TPA Pvt. Limited, SCO No. 98, 1^st Floor, Industrial Area, Phase-2, Chandigarh, through its Managing Director.

[3]  Grewal Eye Institute, SCO No. 166-169, Madhya Marg, Sector 9-C, Chandigarh, through Dr. Ashish Ahuja.

---- Opposite Parties

BEFORE:    MRS.MADHU MUTNEJA               PRESIDING MEMBER

           SH.JASWINDER SINGH SIDHU        MEMBER

Argued By:    Sh. Balwinder Singh Sudan, Counsel for Complainant.

Ms. Madhu Sharma, Counsel for Opposite Party No.1.

Opposite Party No.2 Ex-parte.

None for Opposite Party No.3.

PER MADHU MUTNEJA, MEMBER

1.        The Complainant was a beneficiary of a Hospitalization Insurance Cover provided by Opposite Party No.1 through Opposite Party No.2 in consideration of the premium paid by the Employer of the Complainant i.e. M/s Bebo Technologies (Pvt.) Limited. An ID Card bearing No.04CAA0056987Z was issued by Opposite Parties No.1 and 2 to the Complainant entitling her to avail the services. As per the Hospitalization Insurance Police Guide Book, the Complainant was entitled to the following:-

          i)       Cashless services at the enlisted hospitals;

          ii)      Reimbursement of pre/post hospitalization;

          The Complainant has stated that she approached Opposite Party No.3 in June, 2010, for the treatment of KERATOCONUS disease. She was given to understand by the staff of Opposite Party No.3 that she would get a cashless facility from Opposite Parties No.1 & 2, as many other Patients had got the same benefit. However, the cashless facility was not provided to the Complainant. The Complainant thus, got the treatment for both eyes done by making payment in cash.  

          After the treatment, the Complainant submitted two different claim forms claiming Rs.28,385/- and Rs.24,955/- in connection with the surgeries of both eyes to the Opposite Party No.2 (claim forms along with treatment history and bills at Annexure C-4 and C-5, respectively). The Complainant was surprised when the Opposite Party No.2 repudiated the claim on the following grounds:-

“SINCE PRESENCE OF GENE MUTATION IS ASSOCIATED WITH SAID DIAGNOSIS VIDE BY LETTER RECEIVED FROM HOSPITAL DATED 18.06.2010 ATT, THE CLAIM AGAINST KERATOCONUS LT EYE MERITS REPUDAITION UNDER CLAUSE 4.15/ MEDICLAIM & HENCE NOT ADMISSIBLE.”  (Annex.C-6)

          The Complainant, thereafter, made a representation to Opposite Party No.1 to settle her claim as per the original bills submitted; stating that otherwise she would have to take recourse to legal action. She received a reply from Opposite Party No.1 (Annexure C-8), wherein it was informed as under:-

“We regret to inform you that the competent authority has been satisfied the same which was done by TPA as under:-

The claim against Keratoconus LT eye merits repudiation under clause 4.15/mediclaim and hence not admissible. Now we are returning the complete claim file to Vipul Med TPA. It is for your kind information please.”  (Annex.C-8)

          The Complainant has stated that despite having a valid hospitalization cover, as per the policy issued, the Opposite Parties not only denied her cashless service, but also refused to reimburse the expenses incurred by her. This according to her amounts to deficiency in service and unfair trade practice by Opposite Parties No.1 and 2. The self-serving exclusion clause was not brought to her notice at the time of taking premium against the policy.

          The Complainant has stated that the clause 4.15 relied upon by the Opposite Parties No.1 and 2 to repudiate the claim is not applicable in her case. The said clause deals as under: -

“4.15 Genetical disorders and stem cell implantation/ surgery.”

          The Complainant has contended that the repudiation of claim on the basis of aforesaid clause is totally misconceived as she does not have any inherent or genetic predeliction.

          Alleging unfair trade practice and deficiency in service on account of repudiation of claim, the Complainant has prayed for reimbursement of the amount incurred, along with interest and compensation, besides cost of litigation.

2.        After admission of the complaint, notice was sent to the Opposite Parties. Despite service, nobody has appeared on behalf of Opposite Party No.2, therefore, it was proceeded against exparte on 25.04.2011.

3.        The Opposite Party No.1 in reply has stated that there is no deficiency in service on their part. After repudiation of claim by Opposite Party No.2 the Complainant took up the matter with the Opposite Party No.1. The Opposite Parties took the opinion of a well renowned eye-specialist Dr.Rajiv Mirchia (Annexure O-1), who opined that Kertaconus is a genetic disorder.

          Hence, relying on the report of the expert and praying that the claim for genetic disorder was not payable, the Opposite Party No.1 while denying all the allegations made by the Complainant has prayed for dismissal of the complaint.

4.        Opposite Party No.3 in reply has submitted that there is no deficiency in service on their part, as the treatment taken by the Complainant was upto her satisfaction and she has not made any allegation about any defect in the treatment.

          On merits, Opposite Party No.3 has stated that the contention of the Complainant about her being a beneficiary in a Hospitalization Policy issued by Opposite Parties No.1 and 2 is not to their knowledge. The Complainant had approached them in the month of June for treatment of Keratoconus. Opposite Party No.3 has placed on record literature on the subject “Corneal Disorders Clinical Diagnosis and Management” with relation to Keratoconus at Annexure OP-3/1. Hence, as the Complainant has no grievance qua the treatment given by Opposite Party No.3 so there is no deficiency in service or unfair trade practice by them. Opposite Party No.3 has therefore, prayed for dismissal of complaint qua them.   

5.        During the course of proceedings, the question arose whether Keratoconus is a genetic disease or not. As per the report of Dr.Rajiv Mirchia, placed on record by Opposite Party No.1 at Annexure O-1, Keratoconus is a genetic disease, while the report of Dr. Ashish Ahuja of Grewal Eye Institute, opines that it is not a genetic disease. The opinions of both doctors are as under: -

Grewal Eye Institute

To whom it may concern

“…………..It is for your information that Keratoconus is a bilateral acquired corneal degeneration disorder, which most commonly presents in the age group of 15-25 years. It has no hereditary/ genetic predeliction as per recent research and it happens due to acquired spontaneous mutation in certain genes.”                                                      (Annex.C-10)

Mirchia’s Hospital

(A unit of A-one Creation Pvt. Ltd.)

“This is to inform that Kertaconus is a bilateral, non-inflammatory corneal ectasia, actiology of which is probably multi-factorial. Although a familial history is present only in a minority of cases, one of the major aetiological factors is certainly genetic, which is evidenced by its familial inheritance and its association with genetic disorders such as Down’s and Marfan’s syndromes………...” (Annex.O-1)

As the opinions of the doctors who are both experts in the field was somewhat contradictory, this Forum was of the opinion that the matter be sent to the Director, Post Graduate Institute of Medical Education & Research, Chandigarh, with a request to appoint a committee of Experts to opine in the matter. The case was, therefore, referred to the Post Graduate Institute of Medical Education & Research, Chandigarh, for obtaining an expert report. The report was received vide letter dated 21.05.2012 by this Forum. Being brief and self-explanatory, the report is reproduced as under:-

“…….Keratoconus is a herterogenous condition with variable clinical expression. Several hypotheses have been proposed concerning the genetic, environmental, biomechanical, and biochemical causes. Evidence of genetic etiology includes the familial inheritance, discordance between dizygotic twins, and its association with other known genetic disorders. Environmental factors include contact lens wear, chronic eye rubbing, and atopy of the eye. Most cases of Keratoconus are sporadic but a minority (5% - 10%) has positive family history. In spite of a huge amount of research conducted to elucidate the etiology and the factors affecting disease progression, the exact association with genetic etiology is unknown.

It is neither necessary or practical to prove a distinct genetic etiology solely and directly responsible for causing Keratoconus in any patient due to the complexity of the environmental and other non-genetic factors in influencing the manifestation the disease.”

6.        After receipt of this report, we heard the arguments of the learned counsel for the Complainant and Opposite Party No.1 and also perused the record. As the Opposite Party No.3 failed to appear on the last date of hearing i.e. 21.08.2012. Hence, we have proceeded to dispose of the present complaint on merits under Rule 4(8) of the Chandigarh Consumer Protection Rules, 1987, read with Section 13(2) of the Consumer Protection Act, 1986 (as amended upto date), vide order dated 21.08.2012. Opposite Parties No.2 is already ex-parte.

7.        Parties led evidence in support of their contentions.

8.        The case of the Complainant is that despite being a beneficiary of a cashless facility against the Hospitalization Insurance Cover provided by the Opposite Parties No.1 and 2, the said benefit has not been given to her at the time of treatment for her eyes for Keratoconus disease. The amount spent by her has also not been reimbursed. Opposite Parties in reply have expressed the opinion that the claim of the Complainant is not payable because Keratoconus is a genetic disease and hence, not payable as per exclusion clause 4.15 of the terms and conditions of the insurance policy, which has already been reproduced above.

           To prove her contentions, the Complainant has relied on the report from Grewal Eye Institute, signed by Dr. Ashish Ahuja (Annexure C-10), which is already given above.

          The Opposite Party No.1 has relied on the opinion of Dr.Rajiv Mirchia (Annexure O-1), the relevant extract of which has already been given above.

9.        The opinion of the Post Graduate Institute of Medical Education & Research, Chandigarh has already been reproduced above. As per this opinion, the Post Graduate Institute of Medical Education & Research, Chandigarh has opined that “It is neither necessary or practical to prove a distinct genetic etiology solely and directly responsible for causing Keratoconus in any patient due to the complexity of the environmental and other non-genetic factors in influencing the manifestation the disease.”

          This report of Committee of Experts of the Post Graduate Institute of Medical Education & Research, Chandigarh, being self-explanatory should be acceptable to the Opposite Parties and all contentions about denial of the claim should be now put aside.

10.       The Complainant has made a claim of Rs.28,385/- and Rs.24,955/- in connection with the surgeries of both eyes, duly supported by claim forms along with treatment history and bills (Annexure C-4 and C-5), in our opinion, the repudiation of the claim of the Complainant by the Opposite Parties No.1 and 2 on the basis of exclusionary clause, is, prima facie, unwanted after the opinion given above.

11.       Hence, looking at the entirety of the situation, we are of the opinion that the Opposite Parties No.1 and 2 should honour their commitment and make payment of the claim, as per the insurance policy to the Complainant. 

          The complaint is allowed accordingly. The Opposite Parties No.1 and 2 are directed to reimburse the claim of the Complainant as per the terms and conditions of the policy against all allowable amounts as per claim submitted. The Opposite Parties No.1 & 2 shall also pay Rs.10,000/- to the Complainant towards cost of litigation.

12.       In case United India Insurance Co. Limited Vs. Abdul Rashid Mattoo and Others, (2005) 13 Supreme Court Cases 426, the Hon’ble Supreme Court has held that as under: -

“……………….Merely because the insurer resisted the claim and defended itself, held, a finding as to physical harassment and mental torture could not be recorded against the insurer…………….” 

          As the Opposite Parties No.1 and 2 have refused payment of claim relying on the opinion of an expert doctor, we do not feel that they should be burdened with any cost for deficiency in service or unfair trade practice.

13.       As there is no deficiency in service or unfair trade practice alleged on the part of Opposite Party No.3, the complaint qua Opposite Party No.3 is dismissed.

14.       The amount to be paid against the claims of Rs.28,385/- and Rs.24,955/- be determined by Opposite Parties No.1 and 2, as per terms & conditions of policy and paid to the Complainant within 45 days of the receipt of this order, failing which Opposite Parties No.1 & 2 shall be liable for the claimed amount along with interest @12% per annum, from the date of this order, till it is paid, besides the cost of litigation of Rs.10,000/- awarded.  

15.       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

24^th August, 2012.                                           

Sd/-

 (MADHU MUTNEJA)

PRESIDING MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER