BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 31^st August 2015           

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.:268/2014    

Complainant/s:       Ms.Chanda Vikas Jewoor,

Age: 44 years, Occ: Household, R/o. C/o. I.R.Jewoor “Anand Kamal” Near Rayaramath, Malamaddi, Dharwad 580007.

(By Sri.B.S.Hoskeri, Adv.)

v/s

Respondent/s:         United India Insurance Co. Ltd., Divisional Office, Ankola Arcade, 1^st Floor, Opp.Kalabhavan, P.B.Road, Dharwad 580008. R/by its Divisional Manager.

                                (By Sri.S.S.Karegoudar, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to pay Rs.1,75,000/- with interest @ 9% P.A. from the date of rejection till payment, to pay the global compensation of Rs.1 lakh for loss, harassment and mental agony, to pay the cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, the complainant has purchased policy from respondent called individual health policy 2010 bearing no.240700/48/14/97/00000014 covering the benefits under the policy for the period commencing from 09.04.2014 till 08.04.2015. During the tenure of the policy i.e. on April 2014 the insured experienced pain in left knee and approached Dr.Anand Joshi, Sportsmed, Mumbai, Consultant and Orthopedist, who after detailed clinical and radiological examination found to have medical compartment osteoarthritis varus deformity and suggested to undergo orthoscopic evaluation followed by HTO one leg at a time for treatment of B/L medical comp OA sec. to varus deformity. Hence, complainant went to Mumbai and was hospitalized from 20.05.2014 to 26.05.2014 at Mangal Anand hospital, Center for limb lengthening and reconstruction, Mumbai. As per their advise the complainant had undergone fixator assisted high tibial osteotomy for left tibia under spinal anesthesia. The complainant has taken treatment for medical compartment osteoarthritis left knee, varus deformity as an indoor patient. On receipt of pre authorization request respondent had sought for more information regarding treatment/ailment from doctor. After treatment complainant informed with regard to the treatment and submits claim with all required information, medical documents, bills, seeking settlement of the insurance claim. The respondent by their letter dt.24.07.2014 informed, on scrutiny of papers submitted the surgical procedure – fixator assisted high tibial osteoarthritis for left tibial done for medical compartment osteoarthritis left knee, varus deformity- is a corrective surgery done for the degenerative ailment. Hence, ailment/ treatment does not fall under any category of policy. As per condition 4.6 the company shall not liable to make any payment under this policy for the treatment mentioned in the claim. Hence, rejected the claim. The rejection is without any application of mind the respondent mechanically adhered to the pre concluded notion and disowned the liability illegally though the treatment covers the risk and the complainant has not been treated for the problem which is not covered under the policy. Hence, rejection is untenable, bad in law. The non settlement of the claim amounts to deficiency in service. Aggrieved by the repudiation of the claim the complainant filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondent appeared and filed the written version in detail denying and disputing the complaint averments. Further the respondent taken contention that, the very complaint as brought is false, and illegal and is not maintainable either in law or on facts and to be dismissed in limine. While the respondent disputes and denied the inducement and appeasement offered by advertisement as alleged by the complainant. While the respondent admits issuance of the policy, coverage of the risk for the period subject to terms and conditions of the policy. Further taken contention that the complaint is bad for non joinder of necessary parties i.e. treating doctor and prays for dismissal of the complaint. The present complaint is filed with an ulterior motive to harass the respondent. The complainant not approached this Forum with clean hands and she purposefully suppressed the material facts and obtained the policy by hiding the facts she is sports woman playing table tennis regularly and prays for dismissal of the complaint by referring citations of the different apex courts. By revealing the treatment taken and operation for which the complainant underwent with reference to the medical documents supplied by the complainant and the doctor who attended and treated the complainant the respondent asserted the treatment and the operation for which the complainant underwent at Sportsmed hospital Mumbai the complainant experienced pain in left knee due to excessive usage of limb by playing table tennis as such she approached Sportsmed Mumbai. After consultation with her Dr.Mahendra Kowgnal before the doctor the complainant has disclosed she has taken oral steroids for 3 days back which the sports person consume normally and MRI of both bones discloses – Rt. Knee Lm.Tl., Left Knee Medial Tibio – femoral compartment cartelize – degen., excluded MM and diagnoses disclose BL media compo OA sec.  to varus deformity and on the advise of Dr.Anant Joshi for ideally orthoscopic evaluation followed by  HTO one left at a time. Accordingly Dr.Mangal Parihar center referred by Dr.Anant Joshi she underwent limb lengthening and reconstruction which is known for deformity correction limb lengthening. After that the report was referred by the respondent to one Dr.Satish Y.Irkal, consulting ortho surgeon in respect of the claim made by the complainant by producing the documents sought for opinion could the treatment comes within the disease as per the policy condition 4.6 B in page.13. That expert is of opinion that the complainant undergone corrective surgery done for degenerative ailment cause could be either heavy activity or ageing process being sports person, chances to get degenerative changes are high and the hospital where she treated is a specialized in treating such type of cases. Then only when the ailment/ treatment does not fall under any category in operative clause mentioned in policy and as per policy condition 4.6 in respect of esthetic treatment such as corrective operation shall not come under the purview condition, claim was rightly rejected. The complainant suppressed all the facts & obtained the policy which amounts to violation of the policy conditions. Under those circumstances respondent is not liable to settle the claim and asserted justification in rejecting the claim by referring to several apex courts judgments and denied the deficiency in service and negligence on the part of respondent and prays for dismissal of the complaint with cost.

4.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

 Both have admits sworn to evidence affidavit, relied on documents. The respondent apart from examining himself adduced one more additional evidence of witness. Both have argued, the respondent apart from argument relied on citations. Heard. Perused the records.

Finding on points is as under.

1.  Affirmatively
2.  Accordingly   
3.  As per order

Reasons

Points 1 and 2

5.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact,  the complainant had purchased individual health insurance policy from the respondent. Further there is no dispute with regard to the fact that she had sufferings of knee pain for which she underwent operation and treatment at Sportsmed Hospital Mumbai.

6.     Now the question to be determined is, whether the complainant had suppressed the real material facts, whether the operation and treatment carried out do not comes within the purview of exclusion clause.4.6 of the policy in question, non settlement of claim by the respondent amounts to a deficiency in service, if so, for what relief the complainant is entitled.

7.     Since the facts have been revealed in detail which requires no repetition.

8.     As per the assertions and admissions there is no dispute with regard to the fact the complainant underwent operation as an inpatient and had incurred expenses towards the treatment.

9.     Now it is to be considered, whether the complainant had suppressed in non disclosing the fact that she is  sports woman. The respondent repudiated the claim solely based on suppression of this fact and also for the reason the operation for which she undergone is deformity correction limb lengthening which do fall under the policy exclusion clause condition 4.6.

10.   By the medical records and also as per the averments made by the respondent it is evident that complainant is a sports woman but nowhere either in the pleadings, evidence, complainant do not admits she is a sports woman nor denies the averments of the respondent that she is sports woman. By this it is certainly evident that she is a sports woman. Pro contra in contention to this and in rebuttal the LC for complainant strongly opposed for the decision taken by the respondent while repudiating the claim that the complainant has suppressed the fact of non disclosure of the sports woman, is a bald allegation contending that except raising objections the respondent did not produced the proposal form to establish where she had specifically suppressed the fact, when there is no specific column to answer the same. If there is any specific question in the proposal form and if she / insured would have not replied despite the question then it amounts to suppression and in formal course one / proposer need not reveal all the facts which are required or not required when the proposer/ insured was not aware what are the facts to be disclosed. Hence, learned counsel for complainant submits that plea of the respondent cannot be taken into consideration.

11.   With regard to the non coverage of the risk for which the complainant underwent operation and obtained treatment as contended by the respondent it shall not come within the purview of clause.4.6 of the policy terms the LC for complainant argued the operation relating to medical compartment osteoarthritis left knee verus deformity is done not for aesthetic reason but to relieve patient’s symptom of pain and to allow the patient to return to normal life.  In support of this contention the LC for complainant produced and relied on the report given by the doctor who treated the complainant at Mangal Anand hospital center for limb lengthening & reconstruction Ex.C7. In rebuttal to this the respondent relied on Ex.R8 the opinion given by one Mr.Dr.Satish Y.Irkal, Consulting Orthopedic Surgeon and adduced his evidence contending that on the opinion given by the RW-2 and with reference to the medical documents supplied by the complainant that have been issued by Mangal Parihar hospital, Mumbai & after application of proper mind and decision the claim was rejected and further contended justification in rejection. whereas RW 2 i.e. Dr.Satish Y.Irkal in his chief examination said on the request sought by the respondent Ex.R7 he issued his expert opinion Ex.R8 on 22.07.2014 based on the medical report of Mangal Parihar hospital supplied along with the requisition on verification of all the documents with the query that whether the diagnoses medical compartment osteoarthritis left knee, varus deformity and procedure fixator assisted high tibial osteoroty for left tibia under spinal anesthesia on 21.05.2014 whether it is an injury/ailment/correction/ age related disease, I stated in my opinion Ex.R8 that it is corrective surgery done for the degenerative ailment cause could be heavy activity or ageing process. Moreover she is a sports person, so chances for her to get degenerative changes are high. On the basis of this evidence the learned counsel for respondent contended that the respondent rightly rejected the claim as it do not comes within the purview of inclusive clause of the policy and it fallen under 4.6 of exclusion clause.

12.   In support of above contentions the learned counsel for respondent relied on citation Civil Appeal 1557/2004 Supreme Court. In this it is made observation the court while construing the terms of policy is not expected to venture into extra liberalization that may result in rewriting the contract or substituting the terms which are not intended by the parties; RP 930/2008 NC – In this the observation made misstatement itself is not material for repudiation of the policy unless the same is material in nature. But a deliberate wrong answer which has great bearing on the contract of insurance, if discovered may lead to policy be vitiated in law;  RP/3042/2008-NC- is referred with regard to 2^nd part of sec. 45 of insurance Act which formulates repudiation of policy within a period of 2 years in case of statement made in the proposal for insurance was found to be inaccurate or false; RP 991/10 NC in this also observation made in the RP 930/08 NC is discussed. First appeal 636/13 NC- treated for post lasic Ectasia of both the eyes and the same was not covered under clause 4.6 of the policy. Held: Surgery a corrective surgery reimbursement of amount spent on corrective surgery was not permissible. Based on these relevancy LC for respondent submits, complaint be dismissed.

13.   On going through the gist of caselaws relied by the respondent is not applicable to the case on hand for the reason wherein the instant case the complainant nowhere suppressed the material facts. As contended by the complainant there is no specific clause in the proposal form to answer she is sports person. Hence, suppressing the fact do not arise. So also as per the decisions relied there was no intention behind the complainant to withhold the facts. Whereas the treatment though it is corrective treatment is not amount to cosmetic/ plastic surgery. In general whatever the treatment or operations are all carried out with a sole intention to corrective in the sense to cure the disease. In the instant case the complainant had obtained the policy from the respondent previous year to the present policy and she was in the habit of obtaining insurance policy regularly. Under those circumstances she had no intention to have unlawful gains. If in the event for the 1^st time she had obtained the policy the contention of the respondent could have been believed & accepted.

14.   In the cross examination RW 2 stated, that he has given his opinion based on the documents produced to him pertaining to Mangal Parihar hospital and as per the records the treatment is with regard to for deterioration of  knee joint for correction of deformity with fixator assisted high tibial osteotomy for left tibial. This treatment is given as a corrective measure to set right the bowing leg and to relieve the pain she was suffering. The ailment she suffered will be considered as disease. Further the RW 2 in his cross examination admits cosmetic surgery will be carried out for beautification while aesthetic operations will be carried out for corrective operation to set right abnormalities in the body. Osteotomy operation will be carried out to relive the pain and for correction of deformity. By taking into consideration of evidence of RW2 with that of opinion given by the Dr.Mangal Parihar of Mangal Anand hospital Ex.C7 it is evident that osteotomy will be done to relive the patient symptom of pain and to allow the patient to return to the normal life. As such the operation for which the complainant underwent is not a cosmetic purpose and it was done to relive the complainant from the sufferings of the pain  as contended by the respondent or for the reason the operation to be called as corrective measure/ operation it will not be considered as cosmetic or plastic surgery carried out with an intention to beutification of body appearance. If in the event the corrective operation is carried out with the sole intention to relive the patient from suffering of pain and deformity it will not amount to a cosmetic surgery. Hence, the contention of the respondent that the operation/ treatment the complainant underwent will comes within the exclusion clause of 4.6 and the treatment taken do not comes in the purview of inclusion clause the complainant is not entitled for the claim is not proper. Accordingly based on the said assertion repudiation of the claim made by the respondent is incorrect. The complainant with appulsive evidence established her case of deficiency in service. Interalia the respondents failed to establish the operation and treatment obtained by the complainant will fall in the exclusive clause 4.6 of the policy and justification in repudiating the claim. Hence, complainant is entitled for the claim.

15.  In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmative and accordingly.

16.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

        The complaint is partly allowed. The respondent is directed to settle the claim to the extent coverage under the policy along with Rs.5000/- towards compensation and Rs.2000/- towards cost of the proceedings with interest @9% P.A. from the date of this order till realization. The respondent shall comply the order within 30 days from the date of receipt of copy of this order.  

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 31^st day of August 2015)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR