1.      Challenge in the present revision petition is to the order dated 28.03.2011 passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (in short, the State Commission) in Appeal No. 2216/2010. By way of the impugned order, the appeal preferred against the order dated 13.04.2010 passed by the District Consumer Forum, Davanagere (in short, the District Forum) in Complaint No. 137/2009 has been dismissed and the order of the District Forum has been upheld.

2.      Succinctly put, the relevant facts of the case are that complainant had obtained LIC Health Plus Plan offered by the OP. The said policy was valid from 27.02.2008 to 27.02.2037. Under the said policy, the insured was entitled to cash benefit of Rs. 2,500/- towards hospitalization and Rs. 5,00,000/- under the category of major surgeries. On 13.05.2009, the insured was admitted to Apollo Hospital, Bengaluru. As per the discharge summary, operation of ‘Fenestration & Biopsy L4 L5 disc area and L4 L5 disc area vertebral body’ was performed on the insured on 14.05.2009, and he was subsequently discharged on 18.05.2009. Thereafter, claim for Rs. 5,15,000/- was lodged with the opposite party. The same was refused by the opposite parties. Aggrieved, the complainant preferred a consumer complaint before the District Forum.  Upon service of notice, the opposite parties contended that under the Health Plus Policy there were 49 Major surgeries covered under the Policy but the major surgery for spine conducted by the Apollo Hospital was not covered under the policy and the complainant was entitled for only Hospital Cash benefit for 3 days to the tune of Rs.7,875/-. On these grounds, it was prayed that the complaint may be dismissed.

3.      After hearing the parties and appreciating evidence, the District Forum vide order dated 13.04.2010 ordered as follows:-

“ORDER

1. The complaint filed by the complainant is allowed.

2. The Opposite parties are jointly and severally liable to pay a sum of Rs. 5,00,000/- as M.S.B. towards major surgery to the complainant within two months from the date of order along with interest at the rate of 9%.

3. The opposite parties are also liable to pay a sum of Rs. 25,000/- towards mental agony to the complainant.

4. The opposite parties are also liable to pay a sum of Rs. 2,000/- towards cost of this complaint”.

4.      Aggrieved, the opposite parties preferred an appeal before the State Commission. Vide order dated 28.03.2011, the State Commission dismissed the appeal and upheld the order dated 13.04.2010 passed by the District Forum.

5.      Aggrieved, the petitioners have approached this Commission by way of the present revision petition.

6.      Heard the learned counsel for the parties and perused the record.  Learned counsel for the petitioners stated that the list of surgeries is given in the policy document itself and if the complainant was not satisfied with this list he should have returned the policy within the cooling period of 15 days.  However, the policy was not returned and therefore, it will be presumed that the complainant accepted all the terms and conditions of the policy.  The policy covers only 49 major operations and the list was already in the knowledge of the complainant as it was the part of the policy.  The operation performed by the Apollo Hospital is not covered under the list of 49 major surgeries.  The complainant also did not file the documents relating to treatment as well as relating to discharge from the hospital.

7.  It was stated that the District Forum has not dealt with the question whether the operation of the complainant was covered under the policy or not.  The State Commission has considered this question by stating that spinal operation is covered under the head Nervous System.  It was argued that the State Commission has wrongly assumed that the operation performed on the complainant is covered under the surgeries under the Nervous System.  It was further argued by the learned counsel for the petitioners that in the complaint also, the complainant has not disclosed even the name of the operation or any details of the surgery.  It only mentions major surgery.  No papers relating to surgery were submitted.  In the written statement, it was clearly mentioned by the Insurance Company that in both the letters the complainant did not ask to cover the particular surgery namely ‘Fenestration & Biopsy L4 L5 disc area and L4 L5 disc area vertebral body’.  Clearly this surgery is not covered under “Repair of Cerebral or Spinal Arterio-Venous Malformations and cerebral Aneurysms under the head “Nervous System”. 

8.      On the other hand, learned counsel for the respondent/complainant stated that he has filed discharge summary on 03.4.2017 wherein it is clearly stated that the patient was admitted on 13.5.2009 and discharged on 18.5.2009 and the following is mentioned in the discharge summary:-

“DIAGNOSIS. Healing POTT’s spine L4 L5 with persistent pain Systemic hypertension HBSAg Positive

SURGERY DONE:

Fenestration and Biopsy L4 L5 disc area and L4 vertebral body done on 14/5/09 under G.A.”

9.      It was further argued by the learned counsel for the respondent/complainant that both the fora below have given concurrent finding of fact that the operation is covered under the policy.  Facts cannot be reassessed at the level of this Commission under the revision petition where the concurrent finding has been given by the fora below.  The District Forum has already released the amount of claim to the complainant.  The State Commission has rightly considered the spinal surgery as similar to one mentioned under the “Nervous System”.

10.    Learned counsel further stated that right from very beginning after receiving the policy, it was found that the contents of the policy were not correctly written. The sum assured was incorrectly written as Rs.1,00,000/- instead of Rs.5,00,000/- and towards daily hospital benefit Rs.500/- was mentioned instead of Rs.2,500/-, therefore, cooling period will not come into the picture.

11.    I have given a thoughtful consideration to the arguments advanced by the learned counsel for both the parties and have examined the record.

12.    From the discharge report, it is seen that ‘Fenestration & Biopsy L4 L5 disc area and L4 vertebral body’ operation was performed on the complainant.  The State Commission has treated this operation to be similar to the operation mentioned in the list of major surgeries under the head of “Nervous System” viz “Repair of Cerebral or Spinal Arterio-Venous Malformations and cerebral Aneurysms”.  The fact is that two surgeries are totally different. Clearly the operation undergone by the complainant is not part of the list of surgeries provided in the policy.  The contract of policy is a commercial contract and the insured and the insurer are bound by this contract.  It is not for the courts to interpret the policy contract in a different way than, in the manner the contract is entered into between the parties.  Hon’ble Supreme Court in General Assurance Society Ltd. Vs.Chandmull Jain, [1966 ] 3 SCR 500, the Apex Court has observed as under:-

17.” …In interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves.”

 13.   In Oriental Insurance Co. Ltd. Vs. Sony Cherian II(1999 ) CPJ 13 (SC ), it has been observed by the Hon’ble Supreme Court that:-

“16. The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein.”

United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, (2004) 8 SCC 644, has held as follows:-

“6. ….The terms of the policy have to be construed as it is and we cannot add or subtract something: Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended.

9. …It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment.

14. Therefore, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous.”

14.    It is true that initially when the policy was received by the complainant, its contents were not correctly written and the complainant had to correspond with the Insurance Company to get them corrected.  Clearly, in this regard the Insurance Company was deficient in providing the correct policy document to the complainant in time.  I agree with the contention of the complainant that due to this reason availing of cooling period of 15 days will not have any relevance in the present case.  However, this does not strengthen the claim of the complainant in respect of the Insurance amount with respect to operation undergone by the complainant.  The list of major surgeries was already with the complainant and he has not filed any expert opinion from any doctor that the operation performed upon the complainant is covered under the list of major surgeries given in the policy document.  Prima facie it seems that the operation performed on the complainant is relating to disc between L4 - L5  of the spinal cord whereas, the Repair of Cerebral or Spinal Arterio-Venous Malformations and cerebral Aneurysms under the head “Nervous System” relates to operation required to cure the defect of veins developed in the spinal region.  The operation can be considered to be the same as listed in the list of major surgeries given in the policy if the operation is done for getting the same result for the same disease.  In the present matter, this is not the case.  Hence, the surgery performed on the complainant in respect of “Fenestration cannot be considered  as the same of “Repair of Cerebral or Spinal Arterio-Venous Malformations and cerebral Aneurysms” under the head Nervous System.

15.    Based on the above discussion, I reach to the conclusion that the surgery performed on the complainant is not covered under the list of major surgeries given in the policy and therefore, the complainant is not entitled to get the insurance claim in respect of this surgery.  However, as mentioned earlier, the Insurance Company was deficient in providing the correct document in time and therefore, in overall case scenario, I deem it appropriate to allow a compensation of Rs.50,000/- (rupees fifty thousand only) to the complainant by the Insurance Company.  Accordingly, the order dated 28.03.2011 of the State Commission and order dated 13.04.2010 of the District Forum are modified to the extent that the complainant will be entitled to get a compensation of Rs.50,000/-(rupees fifty thousand only) from the opposite party/Insurance Company instead of an amount of Rs.5,00,000/- as awarded by the fora below over and above the amount of hospital benefit.  This amount of Rs.50,000/- (rupees fifty thousand only) should be paid by the Insurance Company along with interest @ 6% from the date of order dated 13.4.2010 of the District Forum.  The award of compensation of Rs.25,000/- and the order relating to cost of litigation of Rs.2000/- is maintained.