IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 19th day of August, 2022
Present: Sri. Manulal V.S. President
Sri. K.M. Anto, Member
C C No. 01/2021 (filed on 04/01/2021)
Petitioner : Vinod Alex,
S/o. E.C. Alexander,
Elamkavumkal House,
Nedungadappally P.O.
Kottayam - 686545
(Adv. Mallika Joseph)
Vs.
Opposite Parties : (1) The New India Assurance Company, Limited, 3rd Floor,
P. John Zachariah Buildings,
Central Junction, Kottayam
Pin – 686 001.
(Adv. P.G. Girija)
(2) Medi Assist India Tpa Pvt. Ltd. Tower D, Fourth Floor, IBC
Knowledge Park 4/1,
Bannerghatta Road, Bangalore.
(3) The New India Assurance Company
Limited, Ernakulam Regional Office
(760000) Kandomkulathy Towers,
M.G. Road, Cochin – 682011
Rep. by its Divisional Manager.
O R D E R
Sri. Manulal V.S. President
The case of the Complainant is that he had taken a New India Medi claim Policy No.76010134199500000322 for the period from 4-9-2019 to 3-9-22 for a sum insured of Rs.1,00,000/.At the time of purchase of the basic premium paid by the complainant was Rs.3412/- and the complainant took the policy as a continuation of the prior policies. During the Policy period, the Complainant was admitted Believers church Medical college and hospital Thiruvalla for a period from 18-12-2019 to 21-12-2019 for Gynacomastia and underwent a surgery on 19-12-2019. After the surgery the fibro faulty tissues removed taken for biopsy and result showed as cystic dilation of ducts with periductal ares shows edema, hylainisation and cellular fibrotic stroma. The complainant had spent Rs.50374 for the treatment in the hospital.
It is averred in the complaint that at the time of purchase of the policy the complainant was under the impression that if any health issues arise then the hospital bills will be settled cashless or as reimbursement as per the policy. The claim for reimbursement of the medical expenses was repudiated by the third opposite party on 5-2-20. The reason showed in the repudiation letter was not at all applicable in this case. The surgery underwent by the complainant was not a cosmetic surgery or aesthetic one. Only after getting the report of biopsy the complainant have come to know that the edeamatic cellular fibrotic stroma removed was not malignant. The complainant admitted in the hospital with the complaints of swelling over left side of breast. Due to the swelling, the physical /anatomical feature of the complainant was changed and after proper check-up the doctor suggested for surgery to confirm the non malignancy of the swelling. According to the complainant due to the unfair trade practice and deficiency in service done by the opposite party the complainant underwent severe mental agony, inconvenience and hardship due to the acts of the opposite party. Hence this complaint is filed by the complainant to direct the opposite party to pay Rs.50,374/- and a compensation of Rs.50,000/- along with the cost of this litigation.
Upon notice opposite party appeared before the commission and filed version as follows:
The opposite party admitted the insurance policy and sum assured. It is submitted in the version that the complainant was admitted in the hospital for complaint of swelling over left side of breast. He had no history of pain or discharge. At the hospital, webster’s procedure was done which is done to correct the over developed enlarged breasts in men. This is a cosmetic surgery procedure which removes excess fat and glandular tissue to restore a flatter, firm and more masculine contour to the chest.
As per clause 4.4.2b of the policy no claim will be payable under the policy for the change of life/sex change or cosmetic or aesthetic treatment (except for burns/injury) of any description such as correction of eyesight etc. There is no clinical record of signs or symptoms of any ailment supported by a positive histopathology report or follow up treatment. There is no biopsy result as alleged in the complaint. The surgery was done to correct the physical appearance of the complainant. There is no deficiency in service or unfair trade practice on the part of the opposite parties.
Complainant filed proof affidavit in lieu of chief examination and marked exhibit A1 to A5series. Asha R Thomas who is the Divisional Manager of the first opposite party filed proof affidavit in lieu of chief examination and exhibit B1was marked from the side of the opposite parties.
On evaluation of complaint version and evidence on record we would like to consider the following points
(1)Whether there is any deficiency in service or unfair trade practice on side of
the opposite parties?
(2) If so what are the reliefs and costs?
Point number 1 and 2
It is admitted that the complainant had taken a New India Medi claim Policy No.76010134199500000322 for the period from 4-9-2019 to 3-9-22 for a sum inured of Rs.1,00,000/. Exhibit A1 is the said policy schedule. It is proved by exhibit A2 that the complainant had been admitted at Believers church Medical college and hospital Thiruvalla for a period from 18-12-2019 to 21-12-2019 for left Gynacomastia. According to the complainant his claim for reimbursement of Rs.50374/- ie. the medical expenses was repudiated by the third opposite party on 5-2-20. Complaint was resisted by the opposite party on the ground that the procedure underwent by the complainant was a cosmetic surgery procedure which removes excess fat and glandular tissue to restore a flatter, firm and more masculine contour to the chest.
Opposite party relied on clause 4.4.2.b. of the policy terms and conditions. On perusal of clause 4.4.2.b of exhibit B1 we can see that the opposite party is not liable to pay the expenses incurred for the treatment for the change of life/sex change or cosmetic or aesthetic treatment (except for burns/injury) of any description such as correction of eyesight etc.
According to the complainant he was admitted in the hospital with the complaints of swelling over left side of breast. Due to the swelling, the physical /anatomical feature of the complainant was changed and after proper check-up the doctor suggested for surgery to confirm the non-malignancy of the swelling. On perusal of Exhibit A2 discharge summary we can see that complainant underwent Websters procedure under GA on 19-12-2019. Moreover it is pertinent to note that the complainant have no history of pain or discharge at the time admission in the hospital as per exhibit A2. Gynecomastia surgery, is male breast reduction, is the surgical correction of overdeveloped or enlarged breasts in men.
On perusal of exhibit A3 we can see that the complainant have no signs of malignancy.
The Hon’ble Supreme Court in a recent Judgment dtd.6th October 2021 i.e. in “SGS India Limited v/s Dolphin International Limited”, categorically held that the onus of proof that there was deficiency in service is on the complainant.
Here in this case as discussed above we are of the opinion that the complainant has failed to prove any deficiency in service on the part of the opposite party. Thus the complaint is dismissed.
Pronounced in the Open Commission on this the 19th day of August, 2022
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Mediclaim policy issued by opposite party
A2 – Discharge summary dtd.21-12-19 from Believers Church Hospital
A3 – Repudiation letter dtd.05-02-2020
A4- Copy of diagnostic report of petitioner from Believers Church Medial
College & Hospital
A5 series – cash bills (15 nos.)
Exhibits marked from the side of opposite party
B1 – Copy of policy with terms and conditions
By Order
Assistant Registrar
