FINAL ORDER
Samaresh Kumar Mitra,Member.
This is a case U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Biswajit Mukherjee.
The case of the complainant’s in short is that he obtained a hospitalization and domiciliary hospitalization benefit policy, individual mediclaim policy from the O.P. No.1 to cover the risks for himself. The policy number is 153600/48/15/8500005377. The petitioner is a patient of Obesity, Hypothoride, Varicose Vain. He at first treated before Dr. G. Ganguly, consultant Neuro Surgeon on 22.6.2016. Later he consulted with Dr. M. Ahammed, MD on 28.7.2016. Thereafter the complainant consulted with Dr.S.Bhattacharjee, MS, head of the department of Cardiac Surgery, SSKM, Hospital. The said doctor suggested the petitioner for Bariatric Surgery. On 30.8.2016 the complainant visited to Dr.Surendra Ugale, M.S. at Belle Vue Clinic. He suggested pathological test. After pathological test the said doctor advised for operation for Mini Gastric Bye Pass to avoid future life risk. That on 5.9.2016 the complainant admitted in belle Vue Clinic for Bariatric Surgery under Dr. Surendra Ugale and after surgery the complainant was discharged on 9.9.2016. In the discharge certificate it is stated that the petitioner is suffering with Rapid Weight Gain with other systemic involvement knee pain, shortness of breadth, pedal oedema with varicose Ulceration, Back Pain. After considering the medical condition the treatment done as “After pac laparoscopic sleeve gastrectomy done by Dr.S.Ugale and Dr.T.Chakroborty under general anaesthesia”.
That the complainant obtained the master policy on 27.9.2011 with a sum insured of Rs.2,00,000/- + Rs.40,000/- and every year time to time he renewed his policy. After discharge the complainant submitted his bills amounting to Rs.1,85,317/- to O.P. No.1.
On 20.1.2016 the O.P. intimated the complainant about repudiation of his claim. As per policy condition 4.19 the claim is not admissible. That O.P. illegally repudiated the medical bills of the complainant. It is clear case of non application of mind and negligence, deficiency of service from the part of the O.Ps. Finding no other alternative the complainant filed this case before this Forum for relief with a direction to the O.Ps. to pay claim amount of Rs.1,85,317/- and to pay Rs.50,000/- towards compensation.
The O.P. No.1 contested the case by filing written version denying inter-alia all the material allegation as leveled against them. This O.P. submits that as a matter of fact every policy as issued an given to the insured the prospectus of the policy is enclosed. The complainant who got the policy with that prospectus must have had the knowledge of exclusion 4.9 as clearly mentioned in that prospectus. That for treatment for obesity or condition arising there from including morbid obesity and any other weight control and management programme/services supplies or treatment, the Insurance Company shall not be liable to make any payment under the policy. Here in this case the complainant’s treatment/surgery was purely for obesity and thus under that said exclusion clause as the company had no liability to make any payment. The claim of the complainant was repudiated and the repudiation was communicated to the complainant and in doing so the Insurance Company have never avoided any medical condition as alleged to have been prescribed by the attending doctor on 1.9.2016 as stated by the complainant in paragraph-10 of the complaint. Even if the said operation was urgent operation for mini gastric bypass to avoid future life risk, the Insurance Company is not liable for making payment of expenses for treatment under bariatric surgery for the disease as specifically excluded under exclusion clause No.4.9.
OP No.2 despite receiving notice did not turn up so the proceeding runs ex-parte against them.
Complainant filed evidence on affidavit which is nothing but replica of complaint petition. The opposite party No.1 filed evidence on affidavit which he assailed in the written version so it is needless to discuss. Both sides filed written notes of argument which are taken for consideration for passing final order.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Biswajit Mukherjee is the ‘Consumer’ of the opposite parties?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Biswajit Mukherjee, is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein being the customer of the OP insurance company and OP No.2 is the TPA of said company are the service provider, so beingconsumer he is entitled to get service from the OP .
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complainant prayed for a direction upon the O.Ps. to pay claim amount of Rs.1,85,317/- and to pay Rs.50,000/- towards compensation, and litigation cost of Rs.10,000/- ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
- Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the complainant is that he obtained a hospitalization and domiciliary hospitalization benefit policy, individual mediclaim policy from the O.P. No.1 to cover the risk for himself on 27.9.2011 with a sum insured of Rs.2,00,000/- + Rs.40,000/- and every year time to time he renewed his policy.In the year 2016 the petitioner becomes a patient of obesity Hypothoride, varicose Vain and he was firstly treated on 22.6.2016 by Dr. G.Ganguly, consultant Neuro Surgeon.Without getting no result on 1.8.2016 the petitioner consulted with Dr.S. Bhattacharjee, M.S., head of the department of Cardiac Surgery, SSKM.On 30.8.2016 for confirmation of disease and problem the petitioner meet with Dr. Surendra Ugale, M.S. at Belle Vue Clinic.After considering the report of the pathological test the doctor stated urgent operation for Mini Gastric Bye Pass to avoid future life risk. On 5.9.2016 the petitioner admitted in the Belle Vue Clinic for Bariatric Surgery under treating doctor, Dr. Surendra Ugale and after surgery the petitioner discharged on 9.9.2016.After considering the medical condition the treatment done as “AFTER PAC LAPAROSCOPIC SLEEVE GASTRECTOMY done by DR. S.UGALE & DR. T. CHAKRABORTY under general anaesthesia”.
That on 3.10.2016 the petitioner submitted his various medical expenses bills amounting to Rs.1,85,317/- only to O.P. No.1and opposite party by letter dated 20.1.2016 intimated the petitioner regarding the claim of the complainant has been repudiated as per policy condition No.4.19 and claim is not admissible as treatment for obesity or condition arising there from and any other weight control program/service/supplies.
According to the complainant attending doctor Dr. S.Ugale on 1.9.2016 prescribed that urgent operation is needed for Mini Gastric Bye Pass to avoid future life risk of the petitioner. The complainant assailed that the Bariatric Surgery is a life saving surgery not cosmetic surgery.But the opposite parties illegally repudiated the medical bills of the petitioner as his expenses bills can come within the ambit of case of Life Saving Surgery. He stated in his argument that Bariatric Surgery (weight loss surgery) includes a variety of procedures performed on people who have obesity and weight loss is achieved by reducing the size of the stomach with a gastric band or through removal of a portion of the stomach (sleeve gastrectomy or biliopancreatic diversion with duodenal switch) or by rejecting and re-routing the small intestine to small stomach pouches (gastric bypass surgery). The petitioner referred the case Ashwani Goyal Vs. New India Assurance Company being FA No 1687 of 2010 Hon’ble State Consumer Redressal Commission, Chandigarh in which the appellant was diagnosed as a patient of Morbid Obesity and he was advised Laparoscopic Sleeve Gastrotocomy and the surgery was performed in Kular Hospital. As per literature “obesity Vs. Morbid obesity’’, it is important to understand the difference between obesity, a common medical condition and morbid obesity, which is considered a disease.“Morbid obesity is a serious disease that has been linked to shorten life expectancy”.“Further, morbid obesity surgery is a surgery done to a patient, who is suffering from difficult obesity and to save life of the patient as a life saving surgery. It was not a cosmetic surgery.Ld. Forum has rightly passed the order which deserves to be confirmed by the Hon’ble commission”.
Opposite party No.1 in his written argument stated that with every policy as issued and given to the insured the prospectus of the policy. The complainant must have knowledge of exclusion 4.9 as clearly mentioned in that prospectus that for treatment of obesity or condition arising out there from including morbid obesity and any other weight control and management programme/ services supplies or treatment, the Insurance Company is not liable to make any payment under the policy. In this case the complainants treatment was purely for obesity and thus under that said exclusion clause as the company had no liability to make any payment the claim of the complainant has been repudiated and communicated to the complainant. The insurance company is not liable for making payment of expenses for treatment under bariatic surgery for the disease as specifically excluded under exclusion clause no.4.9.
We have gone through the petition of complaint, copy of Mediclaim policy schedule and correspondences between the complainant and apart from the written version filed by opposite party No.1 and the terms and conditions of the policy, exclusions clause etc. in respect of the policy obtained by the insured, evidence of the complainant and evidence filed by the OP No.1 followed by questionnaire and replies thereto and the BNA filed by both parties. And after hearing argument it appears that the complainant suffering from Morbid Obesity with systemic involvement and received a treatment at Belle Vue Clinic under the treatment of Dr. Surendra Ugale and done “AFTER PAC LAPAROSCOPIC SLEEVE GASTRECTOMY DONE BY DR. S.UGALA & DR. T. CHAKRABORTY UNDER GENERAL ANAESTHESIA”. He took admission on 5.9.2016 and after treatment discharged from the said clinic on 9.9.2016.For getting treatment the complainant compelled to pay a sum of Rs.1,85,317/- in total.Immediately after the treatment the complainant filed claim form before Medsave India (OP No.2) dated 3.10.2016.The specific form supplied by O.P. No.2 has been duly filled by the complainant stating all the information in the blank spaces.After getting the claim form the O.P. No.1 company vide its letter dated 20.1.2017 repudiated the claim of the complainant stating that the claim of the complainant has been taken repudiated as per clause 4.19 of the policy condition which is not admissible as treatment for obesity or condition arising there from (including morbid obesity) and any other weight control program/service/supplies.The complainant became perplexed as his claim has been repudiated. So, getting no alternative he filed the instant complaint before this Forum praying direction upon the O.Ps.It is depicted from the National Mediclaim Policy clause No.4.19 in which it is stated that diagnostic and evaluation purpose where such diagnosis and evaluation can be carried out as outpatient procedure and the condition of the patient does not require hospitalization. It is crystal clear from the xerox copy of prescription as well as discharge sheet that the complainant was admitted on 5.9.2016 and discharged on 9.9.2016.So, the patient was admitted for conducting his surgery at Belle Vue Clinic for four days.Now the opposite party assailed that obesity which falls under 4.9 of the mediclaim policy in which the obesity or condition arising there from (including morbid obesity) and any other weight control program/service/supplies under the head of exclusion. The discharge summary dated 9.9.2016 speaks that “Laparoscopic Sleeve Gastrectomy done to avoid complication OD CO-MOBIDITIES to avoid future life risk. Hemostasis thoroughly secured.Large ports sutured. Skin wounds stapled”.
The complainant by filing a case decision of SCDRC, West Bengal at Calcutta, decided on 23th Sept.2013 in which it is observed by the Hon’ble State Commission that Morbid Obesity surgery is a surgery done to patient who is suffering from difficult obesity and to save life of the patient as a life saving surgery. It is not cosmetic Surgery. Another case decision of SCDRC, Chandigarh in Ashwani Goyal Vs. New India Assurance Company being FA No 1687 of 2010 Hon’ble State Consumer Redressal Commission, Chandigarh the appellant was diagnosed as a patient of Morbid Obesity and he was advised Laparoscopic Sleeve Gastrotocomy and the surgery was performed in Kular Hospital. As per literature “obesity Vs. Morbid obesity’’, it is important to understand the difference between obesity, a common medical condition and morbid obesity, which is considered a disease.“Morbid obesity is a serious disease that has been linked to shortened life expectancy”.“Further, morbid obesity surgery is a surgery done to a patient, who is suffering from difficult obesity and to save life of the patient as a life saving surgery.
Going by the facts and evidence on record, we are of the considered view that the opposite party has failed to adduce cogent evidence in support of their contention that the exclusion clause 4.19 of the subject insurance policy was applicable.
So from the above observation this Forum is in the opinion that the complainant is entitled to get the money expensed for the treatment of the complainant following the entitlement as per column 1.2 of the National Mediclaim Policy of opposite party no.1.
Considering the entitlement, the complainant is entitled to get a sum of Rs.1,75,800/- as expenditure deducting the excess amounts beyond the limits as envisaged in the policy and other reliefs.
From the above discussion we can safely conclude that the complainant abled to prove his case by producing sufficient documents.
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant proved his case, so the Opposite Party No.1 could not avoid his responsibility of paying the claim of the complainant including interest thereon as ascertained by this Forum.
ORDER
Hence it is ordered that the complaint case being No.36/2017 be and the same is allowed in part against the Opposite Party No.1 with litigation cost of Rs.5000/-.
The Opposite Party No.1 is directed to pay a sum of Rs.175,800/- to this complainant including interest @8% since the date of repudiation of claim within 45 days from the date of final order.
The OP No.2 is exonerated from the liability.
No other reliefs are awarded to the complainant for harassment and mental agony.
At the event of failure to comply with the order the Opposite Party No.1 shall pay fine @Rs.50/- for each day's delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
