Tamil Nadu

StateCommission

FA/134/2018

The Oriental Insurance, co ltd, - Complainant(s)

Versus

S. Perumal, S/o. Raja Gounder - Opp.Party(s)

Ms. Nageswaran & Narichania

22 Feb 2023

ORDER

 BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

                        BEFORE :       Hon’ble Thiru Justice R. SUBBIAH                     PRESIDENT

                                     Thiru R VENKATESAPERUMAL                        MEMBER

     

COMMON ORDER IN

F.A.NO.134/2018 AND FA.NO.202/2019

(Against order in CC.No.93/2012 on the file of the DCDRC, Salem)

 

DATED THIS THE 22^nd DAY OF FEBRUARY 2023

 

FA.NO.134/2018 

 

The Oriental Insurance Co. Ltd.,

Divya Towers, Second Floor                                     M/s. Nageswaran & Narichania

Western Part, Fort Main Road                                              Counsel for

Salem – 636 001                                                     Appellant / 1^st Opposite party

 

                   Vs.

 

1.       S. Perumal

          S/o. Raja Gounder                                                 M/s. R. Prabakar

          163L, Sundarar Street                                                Counsel for

          New Alagapuram, Salem- 636 016                   1^st Respondent/ Complainant

 

2.       TTK Health Care TPA Pvt. Ltd.,

          Branch Office at Sri Sai Baba Towers

          148, Raju Naidu Road, Tatabad                           Served called absent

          Coimbatore – 641 012                            2^nd Respondent /2^nd Opposite party

 

FA.NO.202/2019

 

S. Perumal

S/o. Raja Gounder                                                         M/s. R. Prabakar

163L, Sundarar Street                                                       Counsel for

New Alagapuram, Salem- 636 016                              Appellant / Complainant

 

                   Vs.

 

1.       The Oriental Insurance Co. Ltd.,

Divya Towers, Second Floor                        M/s. Nageswaran & Narichania

Western Part, Fort Main Road                    Counsel for 1^st Respondent/1^st OP

Salem – 636 001                                             

 

2.       TTK Health Care TPA Pvt. Ltd.,

          Branch Office at Sri Sai Baba Towers

          148, Raju Naidu Road, Tatabad                             Served called absent

          Coimbatore – 641 012                                   Respondents / Opposite parties

 

          The complainant had filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission had allowed the complaint in part. Against the said order, the 1^st opposite party preferred an appeal in FA.No.134/2018 praying to set aside the order impugned, and the Complainant had filed an appeal in FA.No.202/2019 praying to enhance the award as per the order passed in CC.No.93/2012 dt.9.4.2018.

 

          These appeals are coming before us for hearing finally on today, upon hearing the arguments of the counsel appearing for appellant and the 1^st Respondent, perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following common order in the open court:

 

ORDER

 

JUSTICE   R. SUBBIAH,  PRESIDENT    (Open Court)

 

1.       The appeals in FA.No.134/2018 had been filed by the 1^st opposite party, as   against the order passed by the District Commission, Salem in CC.No.93/2012 dt.9.4.2018 praying to set aside the order impugned and the appeal in FA.No.202/2019 filed by the complainant praying to enhance the award.

 

2.       Since the issues involved in both appeals are one and the same, these appeals are heard together, and are disposed of by way of a common order. 

 

3.       For the sake of convenience, the parties shall be referred as arrayed in the original complaints filed before the District Commission.

 

4.       The brief facts which are necessary to decide the issues involved in the appeal are as follows:

          The complainant had taken an individual mediclaim insurance policy No.453400/48/2012/30 from the opposite party on 4.5.2011, by paying a sum of Rs.13,337/- as premium on 28.4.2011,  and it was valid upto 3.5.2012.  As per the policy, the 1^st opposite party has to pay for hospitalization expenses for medical / surgical treatment taken as inpatient at any nursing home/ hospital in India.  The policy coverage is upto Rs.1,25,000/-.  On 17.12.2011 and on 17.2.2012 the complainant underwent cataract surgery for both eye, with prior intimation, for phaco emulsification precornial multifocal foldable IOL at Hande Hospital, Chennai, and he incurred a medical expenditure of Rs.61,911/- and Rs.64,671/- totally Rs.1,26,582/-.  The complainant claimed the said amount from the opposite parties by submitting all the original bills.  On 9.1.2012 and 4.5.2012, the opposite parties have sanctioned Rs.60,000/- only stating that the surgery undergone by the complainant viz. phaco emulsification precornial multifocal foldable IOL implantation is a cosmetic or aesthetic correction surgery.  He should have opted for mono focal lens instead of IOL.  The 2^nd opposite party had restricted the claim without any valid reason.  The implantation of multifocal foldable IOL is not a cosmetic or aesthetic correction, since it is necessary to the complainant’s eyes.  Thus alleging deficiency in service on the part of the opposite parties, the complainant filed a complaint before the District Commission, praying for a direction to the opposite parties to pay a sum of Rs.1,25,000/- as medical charges alongwith compensation of Rs.1,00,000/- for unfair trade practice, and another sum of Rs.1,00,000/- towards compensation for mental agony alongwith cost of Rs.10000/-. 

 

5.       The case of the complainant was resisted by the 1^st opposite party as follows:

          The opposite party admitted the policy and the treatment taken by the complainant.  It is a mandatory provision for availing cashless access service in the Net work hospital.  Thereby, the TPA shall verify the eligibility of the claim under the policy and after satisfying themselves will issue a pre-authorization letter to the hospital mentioning the sum guaranteed as payable.  Thus the 2^nd opposite party processed the claim papers and thereafter restricted the claim to Rs.60000/- with a valid reason stating that the surgery undergone by the complainant amounts to cosmetic or aesthetic correction surgery.  This complaint is bad for non-joinder of necessary party.  If at all the complainant is aggrieved he should invoke the arbitration clause as stated under clause 512 of the terms and conditions of the policy.  Therefore, there is no deficiency in service on their part.  Thus they sought for dismissal of the complaint.

 

6.       In order to prove the claim, proof affidavits were filed alongwith documents which were marked as Ex.A1 to A7 on the side of the complainant and Ex.B1 to B6 on the side of the opposite parties. 

 

7.       The District Commission, after analysing the entire evidence had come to the conclusion that the opposite parties may have reasons to disallow the excess expenditure borne out by the complainant.  But there is no reason for non-payment the sanctioned amount to the complainant till date.  Thus there is deficiency in service on the part of the opposite parties.  The District Commission, thus holding, had directed the opposite parties to pay the sanctioned amount of Rs.60,000/- alongwith 12% p.a., from the date of sanction and to pay a sum of Rs.50000/- alongwith interest @9% p.a., from the date of complaint till realisation alongwith cost of Rs.5000/-.  Aggrieved over the order impugned, the opposite parties are before us now as appellants. 

 

8.       When the matter is taken up for consideration, the learned counsel for the appellants/ opposite parties would submit that they do not have any grievance with regard to the awarding of Rs.60000/- towards the claim amount, but their grievance is only with regard to the award of interest @12% p.a., which is on the higher side. 

          Further, the learned counsel for the appellants/ opposite parties would contend that when the District Commission had come to the conclusion that the reason assigned by the TPA for restricting the claim to Rs.60000/- is justifiable, then awarding of Rs.50000/- towards compensation is unsustainable. 

 

9.       Per contra, the learned counsel for the appellant/ complainant in his appeal had submitted that the District Commission had wrongly come to the conclusion that the surgery underwent by the complainant viz. phaco emulsification with multifocal foldable IOL implantation on both eyes is to eliminate the use of spectacles after the surgery.  It is not proved that it is not an aesthetic surgery by way of any expert evidence.   

          In this connection, the District Commission failed to note that the IOL  is normally used in any cataract surgery in order to correct the vision, therefore it cannot be considered as an aesthetic surgery.  Moreover, in the policy condition it is not mentioned specifically that fixing of IOL would be considered as an aesthetic type of surgery.   Therefore, the finding of the District Commission in disallowing a portion of the claim is not proper.  Thus prayed for allowing the complaint as prayed for in the complaint. 

 

10.     Keeping the submissions in mind, we have carefully gone through the entire materials available on record. 

 

11.     As seen from the policy condition under clause 4.5, there is a specific exclusion for cosmetic or aesthetic surgery.  Since there is another type of surgery   by implanting mono focal lens is available, the complainant only had opted for surgery by implanting phaco emulsification precornial multifocal foldable IOL.  Therefore, there is no doubt that it is to be considered as an aesthetic surgery, in order to prevent from wearing spectacles after surgery.  Therefore, as per the policy condition the complainant is not entitled to the full claim amount.  Accordingly, the appeal filed by the complainant deserves no merit for awarding the entire amount claimed by the comlainant, and thus liable to be dismissed.

 

12.     Having considered the submissions made by the opposite parties, though they would contend that the complainant had refused to receive the amount as granted by the opposite party, the opposite parties have not produced any evidence to show that the complainant had refused to receive the amount as granted @ Rs.60000/-.  As per Ex.B5, the complainant had only requested for the payment of Rs.53911/-.  Therefore, we find deficiency in service on the part of the opposite party in not sanctioning and paying the amount as estimated by the TPA, to the complainant till now.  Accordingly, the opposite parties are liable to pay the amount alongwith interest and compensation.

          Eventhough, we feel that the award of interest on Rs.60000/- @12% is usurious and the same has to be reduced to 9% p.a. 

          Likewise, we feel that awarding a sum of Rs.50000/- towards compensation is on the higher side.  Therefore, we are inclined to reduce the award of compensation to Rs.30,000/- instead of Rs.50000/-, and the award of interest @9% on the compensation awarded is hereby set aside. 

          The appeals are ordered accordingly. 

 

13.     In the result, the appeal filed by the appellant/ 1^st opposite party in FA.No.134/2018, as against the order of the District Commission in CC.No.93/2012 dt.9.4.2018 is allowed in part, in modifying the order of the District Commission, by reducing the award of interest @9% p.a., on Rs.60,000/-, instead of 12%, and by reducing the compensation to Rs.30000/- instead of Rs.50000/-.  The award of interest @9% on the compensation amount is hereby set aside.  The cost awarded by the District commission is hereby confirmed.    

          The appeal filed by the complainant in FA.No.202/2019 is dismissed. 

          There is no order as to cost in both the appeals.        

 

 

R VENKATESAPERUMAL                                                                        R. SUBBIAH

           MEMBER                                                                                            PRESIDENT