Punjab

Ludhiana

CC/14/449

Kulbhushan Jain - Complainant(s)

Versus

United India Ins.Co.Ltd - Opp.Party(s)

-

24 Feb 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

                                                                 Complaint No: 449 of 16.06.2014

                                                                                                                    Date of Decision: 24.02.2015

 

Kulbhushan Jain s/o Sh.Niwas Jain, resident of House no.382/1, Durga Vishkarma Mandir Street, Nimwala Chowk, Ludhiana.

……Complainant

Versus 

1. United India Insurance Company Limited, Registered & Head Office at 24 Whites Road, Chennai-600014, through its Chairman.

2. United India Insurance Company Limited, Regional Office No.136, Feroze Gandhi Market, Ludhiana, through its Sr. Regional Manager.

3. United India Insurance Company Limited, Divisional Office-III, Gulmohar Hotel Building, Ferozepur Road, Ludhiana, through its Sr. Divisional Manager.

4. M/s Alankit Health Care Limited, Alankit House, 2-E/21, Jhande Wala Extension, New Delhi, through its Director/Manager.

 

…..Opposite parties 

 

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986.

 

Quorum:     Sh.R.L.Ahuja, President

                   Sh.Sat Paul Garg, Member

                   Smt.Babita, Member

 

Present:       Sh.Dinesh Kumar, Advocate for complainant.

                   Sh.D.R.Rampal, Advocate for OP1 to OP3.

                   OP4 exparte.  

 

                                            ORDER

 

(SAT PAUL GARG, MEMBER)

 

 

1.               Present complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) has been filed by Sh.Kulbhushan Jain s/o Sh.Niwas Jain, resident of House no.382/1, Durga Vishkarma Mandir Street, Nimwala Chowk, Ludhiana (herein-after in short to be referred as ‘complainant’) against United India Insurance Company Limited, Registered & Head Office at 24 Whites Road, Chennai, through its Chairman and others (herein-after in short to be referred as ‘OPs’)- directing them to pay the amount of Rs.2,33,072/- to the complainant incurred by him on his treatment, to pay the interest @ 12% p.a. from the date of treatment till full and final payment of the amount, to pay Rs.1.00 lac as compensation and damages for causing harassment, mental pain, agony and hardship to the complainant alongwith any other additional or alternative relief.

2.                Brief facts of the complaint are that the complainant is the holder of Individual Health Insurance Policy no.200900/48/12/97/00000252 effective from 29.4.12 to 28.4.13. The said policy was issued for the entire family of the complainant, which includes his wife Smt.Anju Jian, daughter Ms.Namita Jain besides the complainant. During the course of policy effective from 29.4.12 to 28.4.12 the complainant started having symptoms of increase in weight gradually and also started suffering from breathlessness while walking and from snoring. He was also having the feeling of fullness after the means and his food intake also increased. The complainant consulted the doctors of DMC and Hospital, Ludhiana and on the advise of the doctors, the complainant got himself admitted in the said hospital on 23.12.12. During the period of his admission in the hospital, the complainant was diagnosed that he suffered from morbid obesity with Diabetic Mellitus Type-II and Obstructive Sleep Apnoea and complainant was operated upon on 24.12.12 and thereafter discharged on 28.12.12 in a stable condition and was advised follow up treatment. When the complainant was admitted in the hospital on 23.12.12, he immediately informed the OP4 i.e. Third Party Administrator regarding his treatment. After the discharge from the hospital again the intimation was given to the OP4. Therefore, the complainant had duly fulfilled the requirement of the policy and had given the due intimation from time to time as required under the said policy. The documents which were duly required to be submitted by the complainant were also handed over to the OP4. Thereafter OP2 issued the letter dated 1.4.13, wherein, it was mentioned that the treatment taken by the complainant is for morbid obesity which is not covered under the policy as per the clause no.4.9 and as such, the amount cannot be paid to him and his claim was declined. The said repudiation of the claim of the complainant is against the facts and is against the terms and conditions of the policy. Claiming the above act as deficiency in service on the part of the OPs, the complainant has filed this complaint.

3.                On notice of the complaint, OP1 to OP3 appeared through their counsel and filed written statement taking preliminary objections that the complaint is not maintainable in the present form; the complaint is false and frivolous one and is liable to be dismissed with exemplary costs; the complaint is bad for non joinder and misjoinder of necessary parties; the complainant has not come to this Forum with clean hands and has suppressed the material facts; Intricate question of law and fact are involved in this case and this case cannot be summarily decided by this Forum and only civil court is competent to decided the present case. On merits submitted that the medical record i.e. discharge summary and medical certificate dated 10.4.14 placed on record by the complainant himself are showing that complainant suffered from Morbid Obesity with diabetes mellitus type 2 and obstructive sleep Apnoea. Further submitted that such type of cases are being dealt with by aforesaid TPA/OP4. The competent doctors of Alankit Healthcare TPA minutely scrutinized the claim of the complainant and after going through record of medical treatment of complainant, they found that complainant was suffering from Morbid Obesity and case of the complainant was falling under exclusion clause 4.9 of Individual Health Insurance policy and advised the OP1 to OP3 to repudiate the claim of the complainant and on receipt of opinion of OP4 and also going through the medical record of the complainant, the OP1 to OP3 also found that claim of the complainant is not payable one and falls under exclusion clause 4.9 of Individual Health Insurance policy and same was repudiated by competent authority of the Ops and repudiation letter dated 1.4.03 was posted to the complainant repudiating the claim. The due service has been rendered by the OPs and there is no deficiency in service on their part. Denying the contents of all other remaining paras, OP1 to OP3 prayed for the dismissal of the complaint.

4.                Notice of the complaint was sent to OP4, through registered post on 21.7.14. But no report was received. As such, after expiry of 30 days of period, OP4 was proceeded exparte, vide order dated 22.08.14 of this Forum. 

5.                Ld. counsel for complainant has adduced the evidence by way of duly sworn affidavit of complainant Sh.Kulbhushan Jain Ex.CW1/A, wherein, the same facts have been reiterated, as narrated in the complaint alongwith documents Ex.C1 to Ex.C7 and also attached the affidavit of Sh.Ashish Ahuja s/o Dr.B.K.Ahuja, R/o 132/1, Rani Jhansi Road, Ludhiana Ex.CW2/A alongwith documents Ex.CW2/A and Ex.CW2/B. On the other hand, Ld. counsel for OP1 to OP3 has adduced the evidence by way of duly sworn affidavit of Sh.Rakesh Chadha, Assistant Manager, United India Insurance Co. Ltd. D.O-3, Gulmor Hotel Building Ferozepur Road, Ludhiana Ex.RA, wherein, the same facts have been reiterated as narrated in the written statement and also adduced evidence by way of affidavit of Dr.Pradeep Gupta, Director, Alankit Health Care TPA Limited, 2^nd Floor Vikas Surya Plaza Mangalam Palace, Sector-3, Rohini Delhi Ex.RB and also attached documents Ex.R1 to Ex.R7.

6.                Case was fixed for arguments. Ld. counsel for complainant filed written arguments, wherein, averred that complainant availed Individual Health Insurance Policy from the OPs effective from 29.4.12 to 28.4.13. During the subsistence of the aforesaid policy, he suffered breathlessness and was having a feeling of fullness after the meals and there was also a increase in intake of food and the complainant was admitted and DMC and Hospital, where he was diagnosed that he was suffering from Morbid Obesity, Diabetes Mellitus Type-II and obstructive sleep apnoea. Due intimation regarding the hospitalization was given to the OP4. But the OP2 vide letter dated 1.4.13, rejected the claim of the complainant on the ground that treatment taken by the complainant is for morbid obesity, diabetes mellitus type-II and obstructive sleep apnoea are not covered under the policy as per exclusion clause 4.9. Further averred that during the course of evidence, besides the complainant himself appearing as CW1, he has also examined Dr.Ashish Ahuja MBBS, MS (Surgery) and the said doctor has fellowship in Bariatric Surgery from Australia is working as Associate Professor in the Department of Surgery in DMC and Hospital, Ludhiana. He has categorically stated that the complainant was suffering from diabetes mellitus type-II and obstructive sleep apnoea alongwith osteomyelitis and morbid obesity is only a side-effect of the above said minor complications suffered by the complainant. He has also stated that the surgery which has been performed on the patient is medically known as Bariatric surgery and is not a cosmetic surgery. He has further stated that bariatric surgery is a gastrointestinal surgery in the Rubric of the surgical gastroenterology. The very fact that the OPs have not pleaded for the cross examination of the said witness nor have they examined any medical practitioner shows that they have admitted the deposition of Dr.Ashish Ahuja, who is a super specialist in the field of Bariatric surgery. Further averred that the medical evidence of the complainant remains un-rebutted. It is a basis principle of law that if a term and condition in the policy s ambiguous and is open to interpretation then the interpretation which goes in favour of consumer is to be given affect. Ld. counsel for complainant also relied upon the judgements passed in cases titled as Sushil Kumar Jain Vs United India Insurance Co. Ltd-2012(3) CLT 6 (NC), Avneet G Singh Vs ICICI Lombard General Insurance Company Limited and others-374 2014 (2) CLT (State Commission UT, Chandigarh).

7.                Ld. counsel for OP1 to OP3 argued orally that the medical record i.e. discharge summary and medical certificate dated 10.4.14 placed on record by the complainant himself are showing that complainant suffered from Morbid Obesity with diabetes mellitus type 2 and obstructive sleep Apnoea. Further argued that that case of the complainant was dealt with by TPA i.e. OP4 and the competent doctors of Alankit Healthcare TPA minutely scrutinized the claim of the complainant and after going through record of medical treatment of complainant, they found that complainant was suffering from Morbid Obesity and case of the complainant falls under exclusion clause 4.9 of Individual Health Insurance policy. On receipt of opinion of OP4 and also going through the medical record of the complainant, the OP1 to OP3 also found that claim of the complainant is not payable one and falls under exclusion clause 4.9 of Individual Health Insurance policy and same was repudiated by the Ops

8.                We have gone through the pleadings and written arguments submitted on behalf of complainant as well as defence taken by the OPs and have also perused the entire record placed on file.

9.                It is evident that the complainant availed Individual Health Insurance Policy no.200900/48/12/97/00000252 effective from 29.4.12 to 28.4.13. During the subsistence of the aforesaid policy, he suffered breathlessness and was having a feeling of fullness after the meals and there was also a increase in intake of food. It is further evident that complainant was admitted in DMC and Hospital for Morbid Obesity uncontrolled diabetes and obstructive sleep apnoea and Osteomyelitis. It has been proved by the complainant that Bariatric Surgery is a Gastrointestinal Surgery under the rubric of surgical gastroenterology and not plastic/cosmetic surgery. As such, all the treatments taken by the complainant does not fall under the exclusion clauses 4.6 and 4.9 of the policy, which read as follows:-

“4.6.    a. Circumcision unless necessary for treatment of a disease not excluded hereunder or as may be necessitated due to an accident.

                        b. Vaccination and inoculation.

c. Change of life or cosmeticor aesthetic treatment of any description such as correction of eyesight, etc.

d. Plastic surgery other than as may be necessitated due to an accident or as a part of any illness.

4.9. Convalescence, general debility; run-down condition or rest cure, obesity and its complications including morbid obesity, Congenital external disease/defects or anomalies, treatment relating to all psychiatric and psychosomatic disorders, infertility, sterility, venereal disease, intentional self injury and use of intoxication drugs/alcohol.

 

                   This Forum is of the opinion that this case by no means falls under the exclusion clause 4.6 and 4.9 of the policy specifically in the light of the affidavit of Dr.Ashish Ahuja Ex.CW2/A, who has opined that the surgery which has been performed on the patient is medically known as Bariatric surgery and is not a cosmetic surgery. He has further stated that bariatric surgery is a gastrointestinal surgery in the Rubric of the surgical gastroenterology. .

10.              Sequel to the above discussion, the present complaint is allowed and OPs are directed to settle and pay the claim of the complainant as per the terms and conditions of the policy. Further OPs are directed jointly and severally to pay Rs.2500/-(Two thousand five hundred only) as compensation and litigation cost compositely assessed to the complainant. Order be complied within 30 days of receipt of the copy of the order, which be made available to the parties, free of costs. File be consigned to record room.

 

 

                   (Babita)                          (S.P.Garg)                      (R.L.Ahuja)

                   Member                           Member                         President

Announced in Open Forum.

Dated:24.02.2015 

Hardeep Singh