Complainants Rajesh Marwaha and Smt.Tanu Marwaha vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the titled opposite parties United India Insurance Company Ltd to pay Rs.6,40,658-60P and other benefit and Rs.2,00,000/- as damages and Rs.20,000/- as litigation expenses alongwith future interest @ 18% per annum from the date of filing of the complaint till actual realization of the amount, in the interest of justice.

2.       The case of the complainants in brief is that they got themselves insured with the opposite parties through the opposite party no.3 vide two different policies i.e. Individual Health Insurance Policy-2010, Policy No.200202/48/13/97/00000289 for the period 28.12.2013 to midnight on 27.12.2014 and Super Top Up Medicare Policy bearing no.200202/48/13/36/00000290 for the period from 28.12.2013 to midnight of 27.12.2014 in their name jointly. The said both policies covered risk of       major surgeries etc. besides other risk. They have further pleaded that complainant no.2 had got some problem in her stomach and she got her major operation/surgery from Lilavati Hospital & Research Centre, A-791, Bandra Reclamation, Bandra (W), Mumbai-400 050 and remained in Hospital from 18.3.2014 to 23.3.2014 and the complainant had submitted the expenses bill for Rs.7,65,658.60P to the opposite party no.3 on 29.3.2014. Thereafter the opposite party no.3 instead of paying the claim amount of Rs.7,65,658-60P, the opposite parties deposited a sum of Rs.1,25,000/- in their account without taking their consent on 19.5.2014 on the ground that the case is of hysterectomy as per policy terms and condition (clause 1.2.1) and this intimation was given by the opposite parties to the complainant vide letter dated 19.5.2014 and their balance has been repudiated. The complainants had pleaded that the said letter dated 19.5.2014 issued by the opposite parties is illegal, null and void, inoperative, ineffective and the same has got no binding force on the their rights as per the terms and conditions of the policies are not applicable and their case fall under clause 1.2.1 clause (b) i.e. Major Surgeries and this fact has been duly admitted by the opposite party no.3 in its various letters. They requested the opposite parties to pay the balance amount of Rs.6,40,658.60P, but the opposite parties have refused to pay the same to them. Hence this complaint.

3.       Upon notice, the opposite party insurer appeared through their counsel and filed their joint written version taking the preliminary objections that the present complaint is not maintainable in the present form and complainant had concealed and suppressed the material true facts from this Ld.Forum. On merits, it was submitted that total expenses were lodged under both policies amounting to Rs.7,65,658.60. As per terms and conditions of the Individual Health Policy the claim found payable is 25% of the sum insured i.e. Rs.4,75,000/- & accordingly Rs.1,18,750/- which was only payable, but due to error or mistake (TPA) wrongly paid Rs.1,25,000/- & complainant in his HDFC bank account, but is liable to refund Rs.6250/- to the opposite party. Rest of the claim was not found payable and even as per terms and condition clause 3.26 under Super Top Up Medi care Policy was also not payable as advised & decided by (TPA) by whom the claimant/insured was duly informed as per Repudiation letter 24.7.2014. Now the insured has assailed the repudiation before this Forum but the complaint is not maintainable and is liable to be dismissed. It was further submitted that Mrs.Tanu Marwaha was having ailments and was under going treatment for some disease/ailment in Lilavati Hospital & Research Centre at Mumbai which is amongst one of the best hospital and the insured was very well and fully aware and having knowledge of the ailment and thus was getting medi-care policies from time to time and with an eye to get compensation latter on far getting treatment from the said hospital from the opposite party. The wife of the claimant was earlier prior to the present claim had also been hospitalized in the Lilavati Hospital and Research Centre Mumbai for her ailments & that time insured had taken only Individual Health Care policy w.e.f. 25.12.2010 to 24.12.2011 and claim was lodged under this policy for getting treatment in the said hospital from 23.3.2011 to 26.3.2011 had received amount of Rs.1,86,809/- on 23.5.2011 vide cheque no.738460 on advice of (TPA) at that time, but the complainant had concealed all these vital facts and relevant information from this Forum and even on application by opposite party filed, but he had refused to submit details, record (Hospitalization), and even gone in an extent & had informed Forum that no claim ever was received from opposite party prior to the present claim thus had concealed and suppressed the facts of earlier claim & ailments and hospitalization from the Ld.Forum. The complainant after getting claim under prior policy, thereafter the complainant for the first time obtained Super Top Up Medicare  Policy on 25.12.2011 alongwith individual Health Care Policy, with a view & eye to get higher claim latter on and was brain child and his maneuvering to get claim from opposite party and was thus getting the policies as such. The complainant as per his game plan again got treatment for her ailment in the Lilavati Hospital and Research Centre Mumbai & lodged claim again under the policies and as per her hospital record and case history alongwith documents, record, medical bills were for Rs.7,65,658.60 on 29.3.2014 to (TPA). It was further submitted that claim under  policy Individual Health Policy as per terms and conditions stipulated in the Policy Clause the claim was also processed as per policy clause 1.2.1 (Disease capping under the policy i.e. as per claim granted by other Hospitals under such cases & also in view of policy clause1.2.1 (a) Cataract, hernia, Hysterectomy a) Actual expenses incurred or 25% of the sum insured whichever is less and the wife of insured underwent Hysterectomy in Lilavati Hospital and thus in view of terms and conditions of clause 1.2.1 (a) of the policy 25% of Rs.4,75,000/- i.e. Rs.1,18,750/- was in fact payable but (TPA) wrongly paid Rs.1,25,000/- to the insured and Rs.6250/- the claimant has to refund back to opposite party/(TPA). It was next pleaded that the Super Top Up Medicare policy the claim as per clause 3.26 Pre Exciting Disease:- Any condition ailment or injury or related condition(s) for which you had signs or symptoms and/or were diagnosed, and/or received advice/treatment, within 48 months prior to the first policy issued by the insurer. Thus in view of this exclusion/clause of this policy the (TPA) had repudiated the claim vide letter of TPA dated 24.7.2014 who informed and advised and thus found that no claim was payable under Super Top Up Policy also. Thus the claimants is not entitled to any claim under the policies and what so ever was payable has been already paid under policy Individual Health Policy. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.       Complainant tendered into evidence his own affidavit Ex.C1 along with the other documents exhibited as Ex. C2 to Ex.C52 and closed the evidence.

5.        On the other hand, the opposite party tendered into evidence affidavit of Dr.Kamal Krishan Medical Officer Ex.OP1 and of Sh.S.P. Dassan Assistant Manager Ex.OP-5, alongwith the other documents Ex.OP2 to Ex.OP4, Ex.OP6 to Ex.OP13 and closed the evidence.

6.     We have carefully examined the available evidence on the record file so as to interpret the meaning and purpose of each document determined against the backdrop of the respective arguments of the learned counsels of the litigants. We observe that the prime dispute results from the part repudiation/ part settlement (Ex.C18) of the complainants’ insurance med-claim by the OP insurers’ classification of the conducted ‘surgery’ as routine-surgery ‘hysterectomy’ instead of ‘major-surgery’ as claimed. By the time it has been a settled law that the courts shall not interfere in the IRDA approved terms and conditions of an insurance contract once it carries the acceptance and acknowledgement of the insured. The OP insurers have even cited one Hon’ble NCDRC judgment 2014(3) CLT titled: V K Kariyana vs. Oriental Ins. Co. Ltd. and we respectfully concur with the upheld proposition. But, here we find that the dispute pertains to ‘classification’ of surgery and not of ‘adherence/non-adherence’ to Policy’s ‘terms & conditions’. Further, we find the OP insurers’ decision of classifying the undergone surgery (under head 1.2.1a) as routine hysterectomy as non-speaking and non-judicious. The OP insurers have simply relied upon the opinion of their TPA (Third Party Administrator) and that too with a closed mind. The other material available on records such as: Ex.C10, Ex.C11, Ex.C12, Ex.C19, Ex.C21 and Ex.C31 to Ex.C36 do not appear to have been considered nor any second expert opinion appears to have been sought. We have examined the opinion expressed by Dr Vipul Jairath MB ChB, D.Phill., MRCP London; (as available on Ex.C32) upon the operation report duly confirming that the conducted surgery was Hysterectomy PLUS BSO and not just a hysterectomy and thus it falls under the category of ‘major surgery’ that includes cancer surgeries amongst others as mentioned therein (under 1.2.1b*). It further clarifies that the conducted surgery was in response to an emergency and certainly a major surgery for a Hysterectomy & BSO for a benign cancer. It is not understood as to how and why the OP insurers could afford to ignore/overlook the material available on records clearly evidencing ‘major surgery’. It amply proves adoption of ‘unfair trade practice’ coupled with ‘deficiency in service’ on the part of the OP insurers and also holds them liable to an adverse award under the Act.

7.       In the light of the all above, we partly allow the present complaint and thus ORDER the OP insurers to settle and pay the impugned insurance med-claim with full Hospitalization Benefits under head 1.2.1b. (as applicable to ‘major surgeries’) to the complainant besides Rs.5,000/- as compensation (for the harassment inflicted) and Rs.3,000/- as cost (of litigation) within 30 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall attract interest @ 9% PA form the date of the orders till actual payment. 

8.       Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records. 

      (Naveen Puri)

                                                                          President   

Announced:                                                (Jagdeep Kaur)

October 26, 2015                                             Member

*MK*