CONSUMER DISPUTES REDRESSAL COMMISSION-VII

DISTRICT: SOUTH-WEST

GOVERNMENT OF NCT OF DELHI

FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN

CASE NO.CC/234/19

          Date of Institution:-    07.06.2019

          Order Reserved on:- 21.02.2024

                    Date of Decision:-     05.06.2024

IN THE MATTER OF:

ShriNavneetArora (deceased through LRs)

1. Mrs.JamicaArora   

W/o Late ShriNavneetArora

2. RajvirArora

S/o Late ShriNavneetArora

Both R/o H. NO.10,

Road No.72, West Punjabi Bagh,

New Delhi – 110026

.….. Complainant

VERSUS

United India Insurance Company Ltd.

705, BhikajiCamaBhavan,

BhikajiCama Place,

New Delhi - 110066

.…..Opposite Party

Suresh Kumar Gupta, President

1. Initially the complainant has filed the complaint who has expired on 22.06.2021. The application to bring his LRs on record was allowed on 03.01.2022. The LRs were brought on record.

2. The deceased complainant has filed the complaint under section 12 of Consumer Protection Act, 1986 (hereinafter to referred to as Act) with the averments thaton 23.12.2008 a mediclaim policy for his family including himself was taken and policy has been continued till 2018-19. The mediclaim policy number 0401012818P112241813 was valid from 23.12.2018-22.12.2019 showing the inception date of policy as 23.12.2008. There was no pre-existing disease/illness in respect of insured person. He started suffering from super morbid obesity (weight 140.4 kg, BMI-54.2kg/M2) hypertension sleep apnea,dilated cardio myopathy anddiabetes mellitus. He was advised to undergo laparoscopic metabolic surgery. On 27.02.2019, laparoscopic sleeve gastrostomy was done at Sir Ganga Ram Hospital for weight loss and to combat metabolic syndrome as a lifesaving and life protecting intervention. On 01.03.2019, he was discharged from the hospital. TPA vide letter dated 26.02.2019 has denied cashless facility under exclusion clause 4.9. He has to pay a sum of Rs.425097/- to the hospital. He submitted the bills to TPA but the claim was repudiated under clause 4.9 of the policy as treatment of obesity and its complications are excluded from the policy. A legal notice dated 10.05.2019 was issued to make the payment within 7 days which was duly replied and raised the plea of exclusion clause for the rejection of the claim. There is deficiency of service on the part of OP in rejecting the claim. Hence, this complaint.

3. The OP has filed the written statement to the effect that health insurance is a contract and subject to the terms and conditions of the policy. The disease obesity and its complications including morbid obesity comes under clause 4.9 so his claim was rightly repudiated and complainant was left with no cause of action to file the complainton the basis of policy in question. There is no deficiency of service on the part of OP.

4. The parties were directed to lead the evidence.

5. The complainant has filed his own affidavit in evidence wherein he has corroborated the version of complaint and placed reliance on the documents Ex.CW1/1 – CW1/9.

6. The OP has filed the affidavit of Sh. Hemant Kumar Paul, in evidence and corroborated the version of written statement and placed reliance on the documents Ex.DW1/1 and 2 i.e. Repudiation letter and repudiation of the policy.

7. We have heard the Ld. Counsel of the parties and perused the entire material on record.

8. The issuance of policy Ex.CW1/1 is not in dispute. The deceased complainant has been taking the policy since 2008. The said policy has been in the name of diseased complainant as well as of his family members. On 26.02.2019, the deceased complainant was admitted to Sir Ganga Ram Hospital wherein he was diagnosed with super morbid obesity, dilated cardio myopathy, hypertension and obstructive sleep apnea. The deceased complainant has undergone laparoscopy sleeve gastronomy on 27.02.2019 and discharged from the hospital on 01.03.2019 as apparent from discharge summary Ex.CW1/3. The doctor has issued the certificate that surgery was essential in order to combat metabolic syndrome as a lifesaving and life protected intervention. The deceased complainant has paid a sum of Rs.425907/-as apparent from bill Ex.CW1/6. The deceasedcomplainant has initially sought permission for cashless facility which was denied as apparent from Ex.CW1/5. The claim was finally lodged after payment of the bill which was recommended for repudiation by TPA vide letter Ex.CW1/7. The claim has been repudiated by OP vide letters Ex.DW1/1 and 2 as case falls within the exclusion clause 4.9 of the policy.

9. The exclusion clause 4.9 of the terms and conditions of the medical policy says that insurance company is not liable to pay treatment expenses incurred for obesity and its complication including morbid obesity.

10. It is not in dispute that disease complainant has taken the policy for the first time in 2008 which has been enforced till 2018-19. It is also not in dispute that deceased complainant has not taken any claim under the policy. The cause for repudiation of the claim is under clause 4.9 of the policy

“The company shall not be liable to make any payment………..

Convalescence, general debility; run-down condition or rest cure, obesity treatment and its complications including morbid obesity, Congenital external disease or defect or anomalies, treatment relating to all psychiatric and psychomatic disorder, infertility, Sterility, Venereal disease, intentional self-injury and use of intoxication drugs/alcohol.”

11. The obesity treatment is a permanent exclusion clause. The certificate of the doctor Ex.CW1/4 shows that the morbid obesity and itsafflictions collectively represents a life threatening condition in a short and long term so patient was advised to undergo laparoscopy metabolic surgery as a life protecting intervention. The plea of the OP that surgery was for obesity is without any merit as surgery was done as morbid obesity which was a life threatening issue for the deceased complainant.Morbid obesity is a serious disease which has been linked to shortened life expectancy and leads to many ailments.In United India Insurance Co. Ltd. Vs Sunil Gupta and Anr. (2015) 2 CPR NC 635 it was held by Hon’bleNational Commission that morbid obesity is a serious disease that may be associated with severe complications many of which are life threatening. The best treatment for the morbid obesity is laparoscopicmetabolic surgery which is lifesaving surgery rather than a cosmetic surgery.

12. The certificate Ex.CW1/4 issued by Doctor is filed in evidence. The OP has not controverted the certificate issued by the doctor so it can be held that the surgery was not for cosmetic purposes or to improve the physical appearance of the deceased complainant. Support is also drawn from FA No.1687/2010 titled as AshwaniGoyalVs New India Assurance Co. decided on 13.12.2013 by Hon’ble State Consumer Dispute Redressal Commission, Punjab.

13. Moreover, the exclusion clause in the terms and conditions of the insurance policy Ex.CW1/1 was not communicated to the deceased complainant so the exclusion clause is not binding upon the complainant. Such kind of exclusion clause should be pointedly brought to the notice of insured to make him aware of such exclusion.Support is drawn from FA No.614/2020 titled as Bajaj Allianz Life Insurance Co. Ltd. VsBhartiMahavir Jain decided by Hon’ble National Commission.

14. In view of our aforesaid discussion the OP has wrongly repudiated the claim of the complainant thereby leading to the deficiency of service.

15. In view of our aforesaid discussion, the complaint of the deceased complainant is allowed to the effect that OP shall pay a sum of Rs.4,25,097/- along with an interest @7% from the date of filing the complaint i.e. 07.06.2019to the LR of deceased complainant till its realization. The complainant is entitled for compensation of Rs.50,000/- for mental harassment and agony and Rs.30,000/- for litigation expenses. The OP is directed to comply with the order within 45 days from the receipt of the order failing which complainant will be entitled for interest @7% p.a. on the amount of mental harassment, agony and litigation charges i.e. from the date of order till its realization.

• A copy of this order is to be sent to all the parties as per rule.
• File be consigned to record room.
• Announced in the open court on 05.06.2024.