Delhi

North

CC/103/2020

SANJAY PRASAD VERMA - Complainant(s)

Versus

THE NEW INDIA ASSURANCE CO. LTD. & ANR. - Opp.Party(s)

PHOENIX LAW FIRM

29 Jul 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No103/2020

In the matter of

Sh.Sanjay Prasad Verma

S/o Late Sh.S.P.Verma

At Chamber No.409,

Western Wing

Tis Hazari District Court

Delhi-110054                                                                                                   ...Complainant

Versus

The New India Assurance Co.Ltd.

87, Mahatma Gandhi Road

Mumbai-400001                                                                                          ...Opposite Party-1

MD, India Health Insurance TPA Pvt. Ltd.

18/13, WEA, GF, Ganga Plaza

Near Hanuman Murti

Pusa lane, Karol Bagh

New Delhi-11005                                                                                         ...Opposite Party-2

ORDER
29/07/2024

 

Ms.Harpreet Kaur Charya, Member

  The present complaint has been filed by Sh.Sanjay Prasad Verma, Advocate by profession against The New India Assurance Co.Ltd. as OP-1 and MD, India Health Insurance TPA Pvt. Ltd, OP-2.

1. The complainant has stated that in the year 2007, he purchased the health Insurance policy No.712500/34/18/21/00000019 from OP-1 for the period 01/01/2007 to 31/12/2007 and since then got the same renewed regularly without any break.
2. On 17/10/2019, the complainant consulted doctor for some problem in his left side lower jaw.  After multiple tests, the complainant was referred to Faciomaxillary surgeon.  On 24/10/2019, the complainant was diagnosed with Neoplastic/inflammatory/swelling left side maxilla and on 29/10/2019 was advised surgery.
3. On 30/10/2019, the complainant was admitted in St. Stephen Hospital and OP-2 was informed vide certificate.No.712500/GH/JAN2019/1134 in master policy NO.71250034182100000019 through email dated 30/10/2019 at 12:26 p.m.
4. On 01/11/2019, the complainant underwent surgery and was discharged on 04/11/2019.  Claim No.MDO5277633 for reimbursement was filed by the complainant on 15/11/2019 alongwith relevant bills and records.  OP-2 sent a letter dated 23/11/2019 to OP-1 and OP-1 sent an undated and unsigned letter to the complainant denying the claim under Clause 4.4.6 on the following grounds:-

“on perusal/scrutiny of above mentioned claim documents, the date of inception 01/01/2017 patient treated for Neoplastic/inflammation /Swelling left side of maxilla from 30/10/2019 to 04/11/2019. It is evident that as per claim documents it is observed that patient is having h/o tobacco chewing as per policy terms and conditions use of tobacco leading to cancer is excluded from the scope of the policy hence the claim is not payable.Hence the claim is not admissible as per policy clause mentioned.Hence we regret our inability to admit this liability under the present policy conditions.We wish to point out that you still have right of appeal with the insurer.”

5. It has been alleged by the complainant that in renewed Good Health policy certificate, it was duly mentioned that complainant can download terms and conditions forming part of policy. After refusal the complainant tried to check policy terms and conditions same were not attached to Master Policy No. 71250034182100000019 and it specifically mentioned “no policies are linked with the mobile number and email id provided”.
6. The complainant has further alleged that there was no specific finding/medical diagnosis by the treating doctor that unwarranted growth on the left lower jaw was due to consumption of Pan Masala/tobacco. The claim has been repudiated on baseless ground and against medical prescription as the treatment documents are not even suggestive of any direct/indirect correlation with history of tobacco chewing/consumption.
7. The complainant underwent further curative surgery at Apollo Hospital, Ahmedabad, Gujarat and remained admitted from 15/12/2019 to 22/12/2019 and thereafter underwent radiation therapy at ILBS, Vasant Kunj in the month of Feb. and March2020.
8. Feeling aggrieved by the rejection of his claim, the complainant has prayed for directions to OP to process the claim of Rs.1,83,019/- alongwith interest @18% p.a. from date of discharge from hospital; Rs.10,00,000/- as compensation for mental harassment, agony and Rs.25,000/- as cost of proceedings.
9. The complainant has annexed with the complaint Copy of prescription dated 17/10/2019 issued by doctor as Annexure-A, copies of examination and test reports as Annexure-B(colly), copy of prescriptions dated 24/10/2019, 25/10/2019, 28/10/2019 and 29/10/2019 as Annexure-C (Colly), Copy of intimation letter dated 30/10/2019 issued by St. Stephens hospital to OP-2  and copies of mediclaim policy as Annexure-D, copy of discharge summary alongwith discharge bills as Annexure E (Colly), copy of health insurance claim as Annexure-F (Colly), copy of Rejection letter dated 23/11/2019 issued by MD India Health Insurance TPA Private Limited and undated letter issued by OP-1 to the Complainant rejecting the claim of the complainant as Annexure-G, copy of renewed Good Health policy certificate as Annexure-H.
10. Notice of the present complaint was issued to OPs. However, despite service, no one appeared on behalf of OP-2 nor any reply was filed on their behalf.  Hence, OP-2 was proceeded          ex-parte vide order dated 02/12/2021.
11. OP-1 has filed their written statement raising several preliminary objections in their defence such as: there is no deficiency in services, negligence or unfair trade practice; present complaint involved complicated questions of facts and law which cannot be decided in summary proceedings; complaint is vexatious, misconceived and without any merits.
12. It has been submitted that the Good Health  Insurance Policy (including the name of the complainant) vide Master Policy No. 71250034182100000019 for period from 01/01/2019 to 31/12/2019 was a group policy issued exclusively to Citi Bank credit cardholders and was subject to terms and conditions.
13. The complainant was admitted for Neoplastic Inflammation Swelling on left side of Maxilla and was hospitalized from 30/10/2019 to 04/11/2019 at St. Stephen Hospital, where he was managed by excisional biopsy of left mandible under general anaesthesia.
14. As per claim documents/discharge summary, the complainant had history of “Tobacco chewing” thus the claim was repudiated under Clause 4.4.6 of Permanent Exclusion :-

“Convalescence, ALL HEALTH CHECKUP, general debility, Rundown condition or rest cure, congenital external disease or defects or anomalies, sterility, infertility, veneral psychiatric treatment, criminal act/hazardous activity, disease, genetic disorders and stem cell implantation/surgery, intentional self injury and use of intoxicating drugs/alcohol, obesity treatment all psychiatric and psychosomatic disorders, participation in hazardous sports, participation in any criminal act”

15. It has been further submitted that OP-2 has also issued letter dated 06/09/2021 for repudiating the claim.  Tobacco is an intoxicating drug and its use leads to cancer, which is excluded from the scope of policy terms and conditions, thus claim was repudiated vide letter dated 23/11/2019.Rest of the contents of the complaint have been denied.  OP has annexed copy of terms and conditions as Annexure-A, letter dated 06/09/2021 issued by OP-2 as Annexure-B and copy of Insurance policy as Annexure-C. 
16. Evidence by way of affidavit was filed by complainant.  He has repeated contents of the complaint.  He has got exhibited the copy of prescription dated 17/10/2019 as Ex.CW1/1, copies of examination and test reports as Ex.CW1/2(colly), copy of prescriptions dated 24/10/2019, 25/10/2019, 28/10/2019 and 29/10/2019 as Ex.CW1/ 3 and Ex.CW1/ 4, Copy of intimation letter dated 30/10/2019 sent  by St. Stephens hospital to OP-2  and copies of mediclaim policy as Ex.CW1/5 and Ex.CW1/6, copy of discharge summary alongwith discharge bills as Ex.CW1/7 (Colly), copy of health insurance alongwith the relevant bills and records as Ex.CW1/8 (Colly), copy of renewed good health policy certificate for the period from 01/01/2020 to 31/12/2020 as Ex.CW1/9 and copy of renewed good health policy certificate for the period from 01/01/2021 to 31/12/2021 as Ex.CW1/10.
17. OP-1 has got examined Sh.Ramesh Chand Bairwa on its behalf. Contents of written statement have reaffirmed. He has got exhibited Clause 4.4.6 of the policy condition as Ex.RW1/1; copy of the letter dated 06/09/2021 issued by TPA recommending repudiation as Ex.RW1/2; Repudiation letter dated 23/11/2019 as Ex.RW1/3.
18. We have heard the arguments on behalf of Ld. Counsel for the complainant and Ld. Counsel for OP-1.  We have also perused the material placed on record.  The complainant has alleged that OP-1 repudiated the claim on arbitrary and baseless ground that the complainant is having history of tobacco chewing thus claim was not payable as per Clause4.4.6 of policy terms and conditions.
19.  The existence of insurance policy cover is not in dispute.  Discharge summary (Ex.CW1/7 (colly): bears the following details:  

 

22.    It also bears the condition at the time of discharge: histopathology report awaited. We have gone through the histopathology report dated 06/11/2019 where the microscopic results are as follows:-

1.       Sections from buccal gingiva show mucosa with tumour infiltrating the     stroma.  Individual tumour cells has pleomorphic nuclei with high N:C ratio, granular chromatin, prominent eosinophilic nucleoli and moderate eosinophilic cytoplasm.  Keratin pearls present. Stroma also shows dense mononuclear infiltration and tumour giant cells present.

2.       Sections from base of lesion show tumour involvement as described above.

3.       Sections from primary lesion show spindle cells arranged in sheets and fascicles.  Individual tumour cells have pleomorphic round to oval nuclei with granular chromatin, prominent, nucleoli and eosinophillic cytoplasm. Numerous mitotic gigures present. Abnormal mitosis seen.

4.       Section from lingual gingiva shows moderately differentiated squamous cell carcinoma infiltrating stroma. Mucosa also shows involvement.

 

 

23.    Out-patient record of St.Stephen’s Hospital, Tis Hazari, Delhi dated 24/10/2019, also bears history of Pan Masala/Tobacco chewing also on 08/11/2019; it has been recorded H/P s/o squamous cell carcinoma mandible. Even as per CECT face and neck report dated 23/10/2019 and MRI, face and neck with contrast report dated 28/10/2019, the possibility of Neoplastic etiology cannot be excluded.

24.    The complainant has alleged that there was no specific finding/medical diagnosis by the treating doctor that unwarranted growth was due to consumption of Pan Masala/tobacco and OP has failed to prove that the treatment taken by the complainant had any direct/indirect correlation with history of tobacco chewing/consumption.

25.    In the  Journal of Research in Medical and Dental Science, 2021 Volume 9, Issue-12, page 1-4 available on www.jrmds.in which deals with Maxillary soft tissue lesions. It has been discussed  that in regard to neoplasms; Malignant tumors were more than benign with squamous cell carcinoma being the most frequently diagnosis and the most common malignant tumor of the maxilla. This may be related to the increasing prevalence of tobacco smoking and alcohol drinking as it is becoming more popular in our conservative country.

26.    Tobacco chewing a known risk factor for various oral health issues, including neoplastic condition like oral cancer.  The inflammatory condition of the mandible could be a result of a malignant or benign tumor which may have been exacerbated by tobacco use.   The onus is on the complainant to prove that tobacco consumption is not related to his condition.  It is settled principle of law that the one who alleges must prove, if complainant is alleging that his condition was not due to tobacco, then he should have placed on record medical literature, testimony of the treating doctor or an expert opinion which is not so in the present case . The complainant has not discharged this onus.

27.    Further, the complainant has also undergone radiation as stated in para 15 of his complaint that on account of further management he underwent curative surgery at Apollo Hospital, Ahmedabad, Gujarat in the month of December, 2019 and remained admitted from 15/12/2019 to 22/12/2019 and thereafter underwent radiation therapy at ILBS, Vasant Kunj, Delhi in the month of Feb. and March, 2020. 

28.    The complainant has relied upon the judgment of “Sh.Vijay Kumar Makharia vs M/s New India Assurance Company” FA 48/2013 decided on 07/03/2013 by State Consumer Disputes Redressal Commission, UT, Chandigarh.  The facts of the said case are different as in the said case the treating doctor had given the certificate that the complainant underwent surgery for Carcinoma of Tongue.  He was occasional tobacco chewer during his decades of life.  He has given up tobacco chewing approximately 25 years back.  Most probable case of his carcinoma is chronic dental irritation.  In the present case the complainant has placed on record the certificate issued by Dr. Aakarsh Jhamb who has just mentioned that the complainant was seen on 24/10/2018 with complaint of Growth L mandible.  At the time of initial presentation, the lesion seemed to be inflammatory in origin.  Here the treating doctor has not certified that the said growth was not due to tobacco chewing and the reason of such growth.  Hence, this judgment does not support the case of the complainant.

29.    Therefore, from the above discussion we do not find any infirmity in the repudiation letter issued by OP.  Hence, in the facts and circumstances, the present complaint is dismissed being devoid of merits without order to cost.

Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

(Harpreet Kaur Charya)             Member	(Ashwani Kumar Mehta)                          Member   (Divya Jyoti Jaipuriar)           President