Haryana

Ambala

CC/339/2021

Smt Sunita Soni - Complainant(s)

Versus

The Oriental Insurance Co Ltd - Opp.Party(s)

Kanpuriya Grewal

03 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	339/2021
Date of Institution	:	03/11/2021
Date of decision	:	03.05.2023

1. Smt. Sunita Soni aged about 54 years, Wife of Sh. Dalip Soni,
2. Dalip Soni aged about 60 years Son of Brij Mohan,

Both Residents of House no-5601, Halwali Bazaar, Ambala Cantt, District-Ambala, Haryana

          ……. Complainants.

                                                Versus

1. The Oriental Insurance Company Limited, Ground Floor, LIC Building, Ambala City, through its Senior Branch Manager.
2. M/S PARK MEDICLAIM INSURANCE TPA PRIVATE LIMITED, 702, Vikrant Tower, Rajendra Place, New Delhi 110008 through its Authorized Signatory.

                                                                                                    ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Dr. Kanupriya Grewal, Advocate, counsel for the complainants.

                     Shri Rajiv Sachdeva, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

1.                Complainants have filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) and thereafter filed the amended complaint, praying for issuance of following directions to them:-

1. To make the payment of Rs.4,75,000/- i.e. the expenses incurred by the complainant no.1 on her treatment along with interest @ 15% per annum.
2. To pay a compensation to the tune of Rs.5 Lacs to the complainants on account of harassment and agony
3. To pay Rs.50,000/- as litigation expenses.

Or

Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that complainant no.1 and her husband complainant no.2 have been getting Insurance Cover for the family under the scheme from OP No.1 for the last 22-25 years and never made default in the payment of premium. OPs No.1 and 2 interse have a contract under a HAPPY FAMILY FLOATER POLICY - 2015. The complainants have not claimed anything from the OPs for the last 4 consecutive years for any Hospitalization or Pre existing disease etc. The complainants visited FORTIS HOSPITAL MOHALI on 12/09/2019 for her check up. The doctor who examined Complainant no.1 advised her to undergo surgery i.e. LAPAROSCOPIC GASTRIC BYPASS to survive and save her from other diseases. Thereafter the complainants visited MAX HEALTHCARE on 18/11/2019. Complainant no.1 was checked by DR. ROOPA SALWAN and was recommended for surgery. Report dated 26/11/2019 PULMONARY FUNCTION TEST REPORT explicitly mentions MODERATE RESTRICTIVE VENTILATORY DEFECT WHICH COULD BE BECAUSE OF OBESITY (by Dr. Jaya Kumar M.D.). On 27/11/2019 DR. TARUN SHARMA of the same Hospital has mentioned the same fact along with additional fact that "Patient May Be Taken Up For The Proposed Surgery With Mild To Moderate Risk". He also suggested to use supplemental 02 (oxygen) while sleeping to maintain SPO2 more than 94%. Complainant no.1 was admitted in the Hospital on 08/12/2019 and after the operation was discharged on 12/12/2019 and a Certificate dated 12/12/2019 was issued by MAX HEALTHCARE, INSTITUTE OF MINIMAL ACCESS, METABOLIC & BARIATRIC SURGERY. This certificate clearly mentions that the complainant no.1 is a case of HYPERTENSIVE DIABETES MELLITUS HYPOTHYROIDISM WITH MORBID OBESITY (BMI 60.8 KG/M2). Laparoscopic Roux-en-Y Gastric Bypass was performed on 09th December 2019. MORBID OBESITY IS A SERIOUS DISEASE THAT MAY BE ASSOCIATED WITH SEVERE COMPLICATIONS, MANY OF WHICH ARE LIFE THREATENING. As per the direction of OP No.1 a Bill of Rs. 4,75,000/- along with all documents were sent to the OPs. All the records of the Hospital were checked by the OPs. During the correspondence, the OPs have never shown their reluctance for the payment and OP No.2 sought an information regarding some documents and a certificate for providing detailed breakup of Rs 4,75,000/- vide Letter Dated 01/02/2020. OP No.2 again vide letter dated 10/02/2020 asked for some pending documents interalia a certificate from Hospital providing detailed breakup of Rs. 4,75,000/- charges for Gastric Bypass. On 18/02/2020, abruptly, OP No.2 has sent a letter recommending closure of file as "NO CLAIM" in view of exclusion clause 4.20 of the policy. Morbid obesity is serious disease with severe complications and life threatening for which BYPASS surgery is the only option and it cannot be termed as cosmetic surgery. It affects adversely vital organs such as heart, lungs, liver, diaphragm and other vital organs in the abdomen. However, after the refusal of the claim, OP No.1 in the month of July 2020, vide letter dated 01/07/2020 flatly refused to pay the claim amount.   Hence, the present complaint.
3.           Upon notice, the OPs appeared and filed written version raising preliminary objection to the effect that the complaint is false, frivolous, vague and vexatious in nature; there is no cause of action in favour of the complainants to file this complaint; the complaint is not maintainable as the complainants have not come to this Commission with clean hands and suppressed the material facts; the complainants filed the complaint jointly without taking any permission to file the complaint jointly from this Commission; the Hon'ble National Commission in case titled National Insurance Co. Surinder Lal Arora reported in 1995 (2) CLT 374 has held that there is General tendency to lodge false claim before consumer Commission as there is no court fees are payable for processing it and filling of such false complaint are abuse of the process of consumer protection act; the complainants are stopped by their own act and conduct to file this present complaint against the OPs; this Commission has no Jurisdiction to entertain and decide the present complaint; the present complaint is bad for joinder, mis-joinder, and non- joinder of necessary parties, therefore the same is liable to be dismissed etc. On merits, it has been stated that at the time of purchase of said mediclaim policy all terms and conditions were informed/ communicated/ supplied to the complainants including the list of diseases with specification of its coverage. As per list,  claim of the complainants fell under exclusion clause 4.20. The OPs have acted rightly as per the terms and conditions of the Happy Family Floater Policy -2015 which does not amount to deficiency in service. It is wrong to say that the complainant no.1 underwent surgery i.e. LAPAROSCOPIC GASTRIC BYPASS to survive and save her from other disease as alleged. As per clause 4.20 of the policy, treatment of obesity or condition arising there from (including morbid obesity) and any other weight control programme, and similar services or supplies are excluded from the policy. After scrutiny of all the documents by TPA i.e. OP No. 2, OP No.1 rejected the claim as per the terms and conditions. The complainants failed to submit all the documents within time. Rest of the averments of the complainants were denied by the OPs and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainants’ tendered affidavit of complainant No.1 as Annexure C-A alongwith documents as Annexure C-1 to C-27 and closed the evidence on behalf of complainants. On the other hand, learned counsel for the OPs tendered affidavit of Ashish Bhatnagar, Authorized Signatory of the OPs-company The Oriental Insurance Company, Divisional Office, Rai Market, Ambala Cantt. and Dr.Bhuwneissh Goyal, COO, Park Mediclaim Insurance TPA Pvt. Ltd., 702, Vikrant Tower, Rajendra Place, New Delhi as Annexure RX and RXA respectively alongwith documents as Annexure R-1 to R-4 and closed evidence on behalf of the OPs.
5.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
6.           Learned counsel for the complainants submitted that since the complainant no.1 was also covered under the policy in question therefore she was entitled to get the claim amount reimbursed, which was spent by her on her treatment during existence of the policy in question, yet, her genuine claim has not been considered by the OPs, which act amounts to deficiency in providing service, negligence and adoption of unfair trade practice on their part. 
7.           On the contrary, learned counsel for the OPs submitted that the treatment taken by complainant no.1 qua morbid obesity fell under exclusion clause 4.20. He further submitted that the OPs have acted rightly as per the terms and conditions of the Happy Family Floater Policy -2015 which does not amount to deficiency in service. He further submitted that it is wrong to say that the complainant no.1 underwent surgery i.e. LAPAROSCOPIC GASTRIC BYPASS to survive and save her from other disease as alleged. As per clause 4.20 of the policy, treatment of obesity or condition arising there from (including morbid obesity) and any other weight control programme, and similar services or supplies are excluded from the policy. He further submitted that after scrutiny of all the documents by OP No.2, claim of complainant no.1 was rightly rejected as per the terms and conditions of the policy.    
8.           Admittedly, the policy in question was purchased by the complainants from the OPs. It is also not in dispute that during subsistence of the said policy, complainant no.1 was hospitalized in the Max Hospital and took treatment on 08/12/2019 and was discharged on 12/12/2019. It is also not in dispute that the claim of the complainant has been repudiated by the OPs on the ground that the treatment qua morbid obesity taken by complainant no.1 fell under exclusion clause 4.20 of the policy in question. We have also gone through the said clause 4.20 of the policy in question, relevant part of the which is reproduced below:-

“4.20 Treatment of obesity or condition arising there from (including morbid obesity) and any other weight control programme and similar services or supplies”

9.           A bare perusal of clause 4.20 clearly says that treatment of obesity or condition arising there from (including morbid obesity) and any other weight control programme and similar services or supplies are not covered under the policy in question. Because in the present case, complainant no.1 was suffering from morbid obesity and also took treatment for morbid obesity only, which fact is evident from the medical record Annexure C-1 to C-10 as it has been clearly mentioned in the discharge summary dated 12.12.2019 Annexure C-10 (issued by Max Hospital) as “Morbid Obesity” under the column diagnosis,  as such, under these circumstances, in our considered opinion, the OPs were right in repudiating her claim, keeping in mind exclusion clause 4.20.  It is significant to mention here that the insurance policy between the insurer and the insured represents a contract between the parties and the insured cannot claim  anything more than what is covered by the insurance policy. Our this view is supported by the ratio of law laid down by the Hon’ble Supreme Court of India in Oriental Insurance Co. Ltd Vs Sony Cherian (II 1999 CPJ 13 SC) wherein it was held that- ― “..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…”.
10.           No doubt, learned counsel for the complainants, in his favour, has placed reliance on judgments- Ashwani Goyal Vs. New India Assurance decided on 13/12/2013; 2015(2) CLT Page 319, United India Ins. Vs. Sunil Gupta;  2016 CPJ 378 (NC) New India Assurance Vs. Anita Chaudhary & Anr.;  OIC Ltd. Vs. Sunita Arora & Ors, decided on 25/10/2018;  2022 (3) SCC Page 655 JACOB PUNNEN & ANR. Vs. United India Insurance Co. Ltd.; and 2022(4) Law Hearald (P & H) Page 3187 Pranji Batra Vs. Directorate of Enforcement, however, it is significant to mention here that we have very minutely gone through these judgments and found that nowhere, it has been ruled that the insured can wriggle out of the terms and conditions of the insurance policy.  In some of these judgments, the exclusion clauses which says that the insurance company shall not be liable to make any payment qua vaccination or inoculation or change of life or cosmetic or aesthetic treatment of any treatment viz a viz morbid obesity came  for consideration before the  Consumer Commissions and it was only under those circumstances held that treatment of morbid obesity did not come under change of life or cosmetic or aesthetic treatment. In none of these judgments, we find any exclusion clause, like in the present case (4.20), which clearly says that treatment of obesity or condition arising there from including morbid obesity and any other weight control programme and similar services of supplies are not covered under the insurance policy in question.  On the other hand, In Suraj Mal Ram Niwas Oil Mills Private Limited Vs United Insurance Company Limited and another, (2010) 10 Supreme court Cases 567  and Polymat India Pvt. Ltd. and anr. Vs National Insurance Co. Ltd. and others, AIR 2005 Supreme Court 286 , it was clearly held that by the Hon’ble Supreme  Court that words in an insurance contract must be given paramount importance and interpreted as expressed without any  addition, deletion or substitution. As such, reliance placed by learned counsel for the complainants on Ashwani Goyal, United India Ins., New India Assurance,  OIC Ltd., JACOB PUNNEN & ANR. and Pranji Batra’s cases (supra) is misplaced.
11.           In view of peculiar facts and circumstances of this case, it is held that because the complainant has failed to prove her case, therefore, no relief can be given to her. Resultantly, this complaint stands dismissed with no order as to cost. Certified copy of the order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 03.05.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President