ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act 2019 for the deficiency in service in not allowing the cash less treatment in the hospital for treatment of the wife of the complainant and also repudiating the insurance claim in respect of the amount incurred towards hospital expenses and for direction to OPs to pay Rs.3,44,700/- being the medical expenses incurred towards his wife along with interest at 14% per annum and Rs.5,00,000/- as compensation from OPs as OPs caused mental agony, sufferance and hardship and also the litigation expenses, and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; complainant obtained an “Optima Restore Floater Policy” from OPs for the period 26.04.2020 to 25.04.2021 by paying Rs.28,620/- being the annual premium for a sum assured Rs.6,00,000/- covering himself, his wife Vijaya Murali Krishna, and dependent son Master Jathin Krishna.

3.     It is contended that, on 07.04.2021 his wife Smt. Vijaya Murali Krishna was admitted to “Tulip’s Obesity and Diabetes Surgery Centre”, Bangalore due to ill-health and was admitted to the hospital and undergone surgery of laparoscopic Roux–EN–Y gastric bypass with Umbilical Hernia, anatomical repair under general anesthesia on 08.04.2021. Prior to it, cash less claim was made which was rejected by the OP without assigning any reason and after discharge from the hospital, they had to spend Rs.3,25,000/- as hospital charges and incurred another Rs.1,00,000/- for incidental expenses and on 21.04.2021, made the claim in respect of the medical insurance with OP-1 for a sum of Rs.3,44,700/- which was rejected by the OP on the ground that the claim was “for morbid obesity” and according to the terms and conditions of the policy the same is not covered. 

4.     It is contended that, the IRDAI has approved Bariatric and metabolic surgeries and the claims to be honoured from 01.10.2019 if the bariatric patient meets the conditions i.e. 1)surgery conducted  upon the advice of a doctor, 2) the surgery/procedure conducted is supported by clinical protocol, 3) the member is of 18 years of age or older and 4) body mass index (BMI) is greater than or equal to 40. The above stipulation is applicable to his wife. Inspite of it, OP has repudiated the claim for which he has to issue a legal notice. Inspite of it, OP has rejected the claim for reimbursement of the hospitalization charges and hence prayed to allow the complaint.

5.     Upon service of notice, OPs appeared before the commission and filed the version contending that, the complaint is not maintainable either in law or on facts and liable to be dismissed by imposing punitive cost. Further it is contended the complainant has misused the commission and has abused the procedure. Complainant did not provide correct policy number and hence OP could not track for claim of cashless reimbursement under the policy. The same was intimated to the complainant by way of reply to the notice issued on 31.09.2021. Even as on the date of filing the version also, complainant has not provided the correct policy number. Wherefore, the complaint is not maintainable.  Op is not liable or responsible for any of the claim made by the complainant and hence prayed the commission to dismiss the complaint.

6.     In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT NO.1:    IN THE AFFIRMATIVE      

POINT NO.2:    PARTLY IN THE AFFIRMATIVE

                        For the following.

REASONS

POINT No.1:-

8.     On perusing the complaint, version, documents, evidence filed by the both the parties, it becomes clear that, the complainant obtained “Optima Restore Floater Policy” for the period 26.04.2020  to 25.04.2021, from OPs by paying Rs.28, 620 being the annual premium for a sum assured Rs.6 lakhs covering himself his wife Vijaya Murali Krishna and dependent son Master Jathin Krishna. From the documents filed it becomes clear that, the OPs refused the cashless facility to the complainant which itself amounts to deficiency in service for having agreed to provide such a facility in the policy itself. Further the claim made by the complainant regarding reimbursement of the hospital charges has also been repudiated by OPs stating that the policy do not cover.  Obesity related issues. In the letter written to the complainant it is stated that “as per our medical opinion and submitted documents, your claim for “morbid obesity” is excluded from your health insurance policy.” Hence we regret to inform that your claim is repudiated under Section VCix. It is against this repudiation letter the complainant has filed this complainant.

9.     He has also filed the circular issued by the IRDAI  wherein it has clearly and in unequivocal terms provided insurance facility for the persons who have undergone surgery for bariatric problems and to enable the individuals who are suffering with obesity get the health insurance subject to the conditions.

“IRDA understands you are one step closer to selecting a surgery for your growing obesity. The insurance regulatory authority has taken this important step in your transformation path and one not to be taken lightly. 

In order to enhance the health insurance coverage that is granted at the time of issuing a policy it is considered important to rationalise the exclusions that were prevalent in the health insurance policy contracts issued by all Insurance companies. To enable the individuals who are suffering with obesity get the health insurance coverage, it is essential to let the Insurance companies accept such health risks.

IRDA is aware that the health insurance industry in India is keeping pace with the advancements in technologies that are taking place in the healthcare industry. In order to have a holistic and structured approach in devising appropriate guidelines, IRDAI, constituted a Working Group to review the practices and make appropriate recommendations. 

One of the important suggestion from this Working Group is listed in Chapter III, point “F” of this circular. This explains, while every insurance company may want to enhance the availability of health insurance coverage to bariatric patients, the insurance policy contracts may allow for expenses related to the surgical treatment of obesity that does met the below conditions:

1. Surgery conducted is upon the advice of a Doctor
2. The surgery/procedure conducted is supported by clinical protocols
3. The member is 18 years of age or older and
4. Body Mass Index (BMI):
   1. greater than or equal to 40 or
   2. greater than or equal to 35 in conjunction with any of the following severe co-morbidities following failure of less invasive methods of weight loss:
      1. Obesity-related cardiomyopathy
      2. Coronary heart disease
      3. Severe Sleep Apnea
      4. Uncontrolled Type2 Diabetes

These provisions will be applicable in all health insurance products (Other than Personal Accident, Domestic and Overseas Travel Policies) (both Individual and Group). All existing health insurance products that are not in compliance with these Guidelines will not be offered and promoted from 01stOctober, 2020 onwards.”

10.   Complainant has also produced one document where in one patient Niva Vora had undergone the surgery similar to that of the complainant’s wife in the hospital wherein the wife of the complainant has undergone from 01.01.2021 to 04.01.2021 wherein the patients claim for Rs.3,68,311/- has been approved.  Copy of the notice and the reply is admitted by OP.

11.   It is contended by OPs that, the complainant has not furnished the insurance policy details. In the synopsis filed by the counsel for OPs it is contended that earlier the insurance was issued by erstwhile Apollo Munich Health Insurance which was then merged with HDFC ERGO general and complainant obtained the policy for the period from 26.04.2020 to 25.04.2021, when this is taken into consideration, the contention of the OP. In reply notice that the complainant has not produced the insurance details so as to identify as to the nature of benefits available cannot be accepted.

12.   In view of the IRDI issuing circular including for insurance for obesity related surgeries recommended by the doctor / surgeon and the complainant meeting all the conditions, OP is bound to honour the claim of the complainant . Hence the repudiation by OP regarding the claim of the complainant regarding hospital expenses amounts to deficiency in service and having collected premium and in view of the directions by the IRDI repudiation of the claim on frivolous ground amounts, to unfair trade practice. Complaint has also produced the discharge summary and also bill cum receipt, wherein he has paid Rs.3,25,000/- towards total cost of the surgery she has undergone, besides this complainant has to incur some other incidental expenses also. In view of this  we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

13.   Complainant is entitle for reimbursement of Rs.3,25,000/- from the OPs along with interest at 12% per annum on the said amount from the date of claim i.e. 21.04.2021 till payment of the entire amount.  Further OPs are directed to pay a sum of Rs.25,000/- as damages and Rs.15,000/- towards litigation expenses.  Hence we answer POINT NO. 2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The complaint is allowed with cost.
2. OPs No.1 and 2 are jointly and severally hereby directed to pay a sum of Rs.3,25,000/- along with interest at 12% per annum on the said amount from the date of claim i.e. 21.04.2021 till payment of the entire amount to the complainant
3. Further OPs are directed to pay Rs.25,000/- towards damages for compensation and to pay Rs.15,000/- towards cost of the litigation expenses.
4. OPs are further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this commission within 15 days thereafter.
5.   Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 25^th day of AUGUST 2022)

MEMBER         MEMBER       PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Insurance Policy

Ex P2: Copy of the Mail conversation dt:07.04.2021

Ex. P3: Copy of the  claim form

Ex P4: Copy of the mail conversation.

Ex P5: Copy of the Extract of denial letter

Ex P6: Copy of the mail conversation.

Ex P7: Copy of the Legal notice.

Ex P8: Postal acknowledgment.

Ex P9: Returned postal cover.

Ex P10: Copy of the legal notice

Ex P11: Track consignment

Ex P12: Copy of the reply notice.

Ex P13: Copy of the Discharge summary

Ex P14: Copy of the Inpatient bill

Ex P15: Copy of the cash vouchers

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Naesh babu, Executive legal officer of OPs.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Terms and conditions of the policy.

Ex R2: Copy of he claim form.

Ex R3: Copy of the discharge summary dt:12.04.2021.

Ex R4: Copy of the repudiation letter

MEMBER         MEMBER       PRESIDENT

RAK*