Justice Pritam Pal, President

1.     This appeal by Opposite parties  is directed against the order dated 28.5.2009 passed by District Consumer Forum-II, U.T.Chandigarh     whereby  complaint  bearing No.773/2008 filed by complainants     was allowed in the following terms ;

             “ We direct the OPs to make the following payments, jointly and severally to the complainants:-

i)                                         To pay a sum of Rs.40,196/- to the complainants as the Mediclaim amount claimed by the Complainant (Annexure O-3 & O-4 enclosed by the OPs).

ii)                                      Compensation of Rs.20,000/- for causing physical harassment, mental pain and agony to the complainants.

iii)                                   Rs.5,000/- as litigation charges. 

                 This order be complied with by OPs within a period of six weeks of the receipt of its certified     copy, failing which interest @18% p.a. shall also become payable on Rs.60,196/- from the date of filing of the present complaint i.e. 10.07.2008 till the date of realization. ”

2.      The parties hereinafter shall be referred to as per their ranking before the District Consumer Forum.

3.       In nutshell, the facts as set out in the complaint are that    the complainant No.1 took Medi Claim Insurance Policy for hospitalization and domiciliary hospitalization for himself and his wife i.e. complainant No.2 by paying a premium of Rs.9847/- to the OP-1 and the said policy was valid from 05.04.2005 to 04.04.2006. The complainant No.2 had undergone an immediate surgery for nasal polyposis in the month Sept. 2005 and she got her surgery done from a renowned hospital i.e. Silver Oaks Hospital and paid about Rs.40,000/- for the surgery. The complainant No.1 lodged the claim for reimbursement of the amount incurred on the treatment of complainant No.2  but the OPs repudiated the claim on the ground that as per Clause 4.3, during first year of policy, surgery or treatment for sinusitis was not payable. The complainant approached the OPs a number of times but to no avail.  Complainant No.1 then sent letter dated 10.7.2006 alongwith certificate from the doctor regarding the fact that complainant No.2 was not  treated for sinusitis  but OP did not pay any heed. Hence, alleging   deficiency in service, complainants filed complaint before the  District Forum   with the prayer that OPs be directed to pay the amount of claim to them immediately and to pay Rs.2,00,000/- compensation for deficiency in service, mental agony and harassment besides   Rs.55,000/- as litigation expenses.

4.            On the other hand , the case of OPs before the  District Forum was that  the policy in question was taken on 5.4.2005 and the treatment to the complainant  was given in August,2005 only after 4 months of taking  the policy, so, as such  the claim of complainants was rightly repudiated as it  fell under the Exclusion  Clause 4.3 of the terms and conditions of the Policy, whereby it was clearly stated that the Medical claims for treatment of Sinusitis and related disorders were not payable in the Ist year of the policy because    on account of medically established fact  such like diseases / ailments do not pop up in a day or in matter of days, but  it takes months together or even one year to at times 2 or 3 years for the detection / symptoms of such like diseases / ailments. As far as the pre-existing known diseases are concerned, the insured was duty bound to disclose the same and for unknown diseases / ailments, there was Clause 4 of the Policy i.e. the Exclusion clause. Thus, there was no harassment caused to  the complainants at the hands of  OPs  and they had   simply followed the process for finalizing the claim of the complainants and after finding it falling under the Exclusion Clause 4.3, they had rightly rejected the claim of the complainants. OPs pleaded that there was no deficiency in service on their  part and prayed for dismissal of the complaint.   

5.       The District Consumer Forum after going through the   evidence and hearing the learned counsel for parties,  allowed the complaint as indicated in the opening part of this judgment. This is how feeling aggrieved Opposite parties have come in this appeal.

 6.         We have heard learned counsel for the parties  and gone through the file carefully.  The main point of arguments raised on behalf of the appellants/Ops is that here in the instant case the complainant NO.2 underwent surgery for Nasal Polyposis which was a Sinusitis disorder  and as per clause 4.3 of the terms and conditions of the policy Sinusitis and related disorders were not payable during the first year of taking the insurance cover.  He further argued that the compensation and costs awarded by the District Forum are on the higher side.   These points of arguments have been  repelled by the learned counsel for complainants    by stating that the claim   of  the complainant and documents produced in support thereof were considered in their    right  perspective by the learned District Forum  and  allowed  the genuine claim.

 7.         We have given our thoughtful consideration to the entire matter and find that the claim of the complainants was repudiated by the insurance company by applying clause 4.3 of the policy according to which during the first year of taking  insurance cover, the expenses on treatment of diseases such as Contract Benign Prostatic Hypertrophy, Hysterectomy for Menorrhagia of Fibromyoma, Henia, Hydrocele, Congenital Internal disease, Fistula in anus, piles, Sinusitis and related disorders were not payable.  However,   Dr.Raman Abrol who treated the complainant No.2,  a qualified surgeon, gave a certificate to the effect that the surgery on the complainant  was performed not for sinusitis but for extensive nasal polyposis which was the primary condition in the patient.  There is no rebuttal to this certificate on behalf of OPs. The observations made by the learned District Forum  in the impugned order in this regard are reproduced as under ;

“As per the Expert opinion given by Dr. Raman Abrol, who is a fully qualified surgeon, the surgery in question performed on the complainant No.2 was not for Sinusitis, but for the Extensive Nasal Polyposis, which is a primary condition in the patient and that sinusitis should not be dragged into this case in order to avoid the claim of the applicant. Further, even in Clause 4.3 which is being relied upon by the OPs, the excluded disease is only Sinusitis and not specifically Nasal Polyposis. In fact the word Polyposis does not appear in the list of diseases specifically and particularly mentioned for exclusion for making Mediclaim payments. The only word being emphasized by the OPs is THE RELATED DISORDERS. In the entire pleadings / averments of the OPs as also in the detailed arguments put forth by them including the production of the reputed publication of Mayo College of Medicine, USA, the direct and clear cut relationship between Sinusitis and Nasal Polyposis has not been established. As per Dr. Raman Abrol, Nasal Polyposis is only one of the conditions, which may lead to Sinusitis, which obviously means that it may not lead to Sinusitis. It is not the only one and sole condition for causing Sinusitis. Moreover the term Related Disorders has not been expanded and exemplified by the company and as such it will be a very difficult proposition to establish a direct a relationship or Nexus between Nasal Polyposis on the one hand and Sinusitis on the other. In any case, if such a conclusion is reached by anyone, it will be only far fetched and may not be reliable at all.  ”     

 8.      In these facts and circumstances, we are of the considered opinion that the District Forum rightly observed that OPs were deficient in not paying the genuine claim of complainants and ordered Ops to pay to the complainants the claim amount of Rs.40196/- besides Rs.20,000/- for causing physical harassment, mental pain/agony and Rs.5000/-  as litigation costs. Thus, we find no valid reason to interfere  in the  impugned order dated 28.5.2009  which is   well reasoned and justified. Therefore, the  same is upheld and the appeal is hereby dismissed, leaving the  parties   to bear their own costs.

             Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.