PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this complaint the Complainant has prayed that it be held and declared that the Opposite Parties are guilty of deficiency of service and adopted unfair trade practice as per the Consumer Protection Act, 1986 (hereinafter referred to as the Act).  It is prayed that the Opposite Parties be directed to pay Rs.1,46,848/- alongwith interest @ 18% p.a. from the date on which the cause of action has arisen to the Complainant. It is also prayed that the Opposite Parties be directed to pay compensation of Rs.25,000/- towards mental torture and harassment caused to the Complainant and cost of this proceeding. 

2)        According to the Complainant, he is insured continuously since 19/03/2000 by the Opposite Party No.1.  He was also insured during the period 27/03/2010 to 26/03/2011. The copy of the premium receipt of Hospitalization Benefit Policy is filed with Exh.‘A-1’ and the copy of terms and conditions of mediclaim policy issued by the Opposite Party No.1 is at Exh.‘A-2’.  It is submitted that the Complainant had undergone the treatment for Left Eye known as CNVM (Intravitreal Lucentis from vitreo-retinal Surgeon from Dr. Ashish Vaidya.  He was admitted in Netra Retina and Laser Centre for the said treatment on 18/01/2011, 22/02/2011 and 24/03/2011.  While providing the said treatment Local Anesthesia and strict aseptic condition were followed. According to the Complainant, for the entire treatment the medical expenses which were required to be incurred were to the tune of Rs.1,46,848/-.  It is submitted that the Complainant had submitted the claims alongwith relevant documents to the Opposite Party No.2. However, the Opposite Parties repudiated the claim of the Complainant for the reason that “As per terms and conditions intravertal lucentis treatment not payable hence, the claim is repudiated”. It is submitted that the Complainant had submitted explanatory letters to reconsider the decisions of the Opposite Parties. The copies of the treatment documents and the letters issued to the Opposite Parties are filed with the Complainant.  It is alleged that the Opposite Parties did not reconsider the claims lodged by the Complainant, therefore, the Complainant had referred his claim to the Insurance Ombudsman. The Insurance Ombudsman directed the Opposite Parties to pay only 50% of the claim amount to the Complainant.  The Opposite Parties sent cheque of Rs.31,059/- to the Complainant.  The Complainant did not accept the same.  According to the Complainant, the Opposite Parties had never explained to the Complainant that which diseases are covered under the policy and which diseases are not covered under policy obtained by the Complainant.  It is also alleged that at the time of singing of application form or depositing premium for the policy the Complainant was never communicated by the Opposite Parties that the treatment using Lucentis Injections was not covered under the policy.  It is alleged that the Opposite Parties had adopted unfair trade practice while repudiating the claim and harass the Complainant. According to the Complainant, the Opposite Parties are under obligation to follow provisions of by IRDA Regulations, 2002.  The Complainant has therefore, prayed that the reliefs as mentioned in para 1 of this order may be granted against the Opposite Parties.

3)        The Opposite Party No.1 contested the complaint by filing written statement.  It is contended that the Opposite Party No.1 is not aware that the Complainant is holding policy since 19/03/2000.  The Opposite Party No.1 has admitted that the Complainant was admitted to Netra Retina and Laser Centre for treatment on several occasions on CNVM by Intravitreal Lucentis which was treated under Local Anastasia and strict conditions. It is also admitted that Complainant has also submitted claim of Rs.1,46,848/- alongwith mediclaim form.  It is contended that the Opposite Party No.1 complied with the award of Insurance Ombudsman.  It is denied that the Insurer had adopted unfair trade practice to harass the Complainant by not honoring the claim.  It is contended that the entire claim of the Complainant is false, frivolous and devoid of merits and liable to be dismissed.  The Opposite Party No.1 thus, submitted that the complaint be dismissed. The Opposite Party No.2 though served remained absent.  The complaint therefore, proceeded ex-parte against Opposite Party No.2.

4)        The Complainant has filed his affidavit.  The Opposite Party No.1 filed the affidavit of Roopkumar Kalyanpur, Branch Manager of the Opposite Party No.1.  Both the parties filed their written arguments.  The Representative of the Complainant Himanshu Kapadia submitted oral argument on behalf of Complainant and Smt. Jyoti Pandey, Ld.Advocate for the Opposite Party No.1 submitted her oral argument for Opposite Party No.1.  We have perused the documents filed on record by both sides.

5)        While considering the rival contentions of the parties, it appears that the Opposite Parties has rejected the claim on the ground that “As per policy terms and conditions Intravitreal lucentis treatment not payable hence, claim is repudiated”.  The Opposite Parties in their repudiation letter have not pointed out the specific clause in the terms and conditions of the policy where the reason of claim repudiation is quoted.  In the written statement also the Opposite Party No.1 did not quote the specific clause of the terms and condition of the policy issued in favour of the Complainant under which the claim lodged by the Complaint for his medical treatment was rightly repudiated by the Opposite Parties.  From the record of the case it appears that the Complainant has submitted the opinion of Dr. Cyrus Shroff from All India Opthalmological Society.  The Complainant had tried to convince that he is entitle for the claim made to the Opposite Parties for the treatment which he has obtained for his eye problem, but the Opposite Parties did not consider the claim lodged by the Complainant. Furthermore, it appears that the initial policy was obtained by the Complainant since 19/03/2000 from the Opposite Party No.1 and that policy remained continued till the Complainant has obtained the treatment for his eye problem.  We hold that the policy at Exh.‘A-2’ clearly stipulates that in the event if there is hospitalization even for a day insurance amount claim is required to be paid by the Insurance Company.  In the terms and conditions of policy at Exh.‘A-2’ there is no column 6 (9) which is referred in the argument of Opposite Party No.1.  In our view the claim of the Complainant is not beyond the scope of the insurance policy as contended by the Opposite Parties.  The Complainant has produced all the relevant medical papers.  The Opposite Party in our view without considering the fact that the Complainant had obtained his first Medical Hospitalization Policy in the year 2000 under which there is no clause No.6(9) that all treatments like age related macular pre-generation (ARMD and or Choroidal Neo Vascular Membrance done by administration of Lucentis/Avantis/Macugen/Avastin and other related drugs as intravertal injection, Rotational Field quantum Magnetic Resonance (REQMR,), External Counter Pulsation (ECP), and Hyperberic Oxygen Therapy are EXCLUDED under this policy.  Thus, in our view ground on which the claim of the Complainant has been repudiated by the Opposite Parties is not legal and proper in view of the policy which the Complainant had obtained in the year 2000 from the Opposite Party No.1. In our view the Opposite Parties have no right to change the terms and conditions without the consent of the Complainant of the earlier policy which he had obtained and issued by the Opposite Party No.1.  We therefore, hold that reason for repudiation of the claim lodged by the Complainant on the part of the Opposite Parties is unfair trade practice which amounts to deficiency in service.  The Complainant thus, in our view is entitled for the medical expenditure which he has incurred to the tune of Rs.1,46,848/- with interest @ 9% p.a. from 04/03/2011 i.e. the date of rejection of the claim till it’s realization. The Complainant has sought compensation of Rs.25,000/- towards mental torture and harassment caused to him.  We hold that an amount of Rs.10,000/- would be just and proper on this count and cost of Rs.3,000/- towards this proceeding.  The submissions made by the Advocate for the Opposite Party No.1 Smt. Jyoti Pandey in our view in the light of above facts and circumstances of this case cannot be considered as legal and proper.  In the result the following order is passed -

O R D E R

i.          Complaint No.186/2012 is partly allowed against the Opposite Parties.

ii.         The Opposite Parties are directed to pay Rs.1,46,848/- (Rs.One Lac Forty Six Thousand Eight Hundred Forty Eight Only)

            with interest @ 9% from 04/03/2011 till it’s realization to the Complainant.

iii.         The Opposite Parties are directed to pay compensation of Rs.10,000/- (Rs.Ten Thousand Only) toward mental torture and

           harassment caused to the Complainant and Rs.3,000/-(Rs.Three Thousand Only) towards this proceeding to the

           Complainant.

iv.        The Opposite Parties are directed to comply with the aforesaid order within one month from the date of service of this order. 

v.        Certified copies of this order be furnished to the parties.