This case has been arising out of the complaint filed by the complainant against the O.Ps named above u/s. 12 of the Consumer Protection Act, 1986.
The brief fact of the case of the complainant is that the complainant insured his life under policy “STAR PACKAGE” under the O.Ps for improvise benefit on 11/5/2016, vide Policy No. OG – 17 – 2404-8421-00000042 and thereafter on 11/05/2017 under Policy No. OG – 17 – 2404-8421-00000050. The complainant has prayed for issuance of policy in the prescribed form and manner along with supporting documents and fees and the O.Ps after observing all formalities issued a valid policy showing therein the period of insurance 11/05/2016 to 10/05/2017 and thereafter 11/05/2017 to 11/05/2020 and the insured amount was / is amounting to Rs. 20, 00,000/- and the O.Ps received the premium with an assurance that they will discharge proper services to the complainant.
The further case of the complainant is that the complainant due his Hypertension, Hypothyroid, Dyslipidemia, Obstructive Sleep, Apnoea (OSA) and Diabetic Retinopathy shifted to Apollo Hospital at Chennai where he undergone a “METABOLIC SURGERY” as a life saving procedure on 02/10/2017 and he was discharged on 04/10/2017. Accordingly, the complainant informed the O.Ps and submitted a claim form before the O.Ps along with all relevant documents towards his legal claim. But the complainant did not pay any heed to it nor they pay any Med-claim amount to the complainant.
Hence, this case has been filed by the complainant with a prayer to direct the O.Ps to pay Rs. 4,50,000/- towards the cost of surgery as claim amount plus interest @ 18% per annum and the complainant has also prayed for direction to the O.Ps to pay Rs. 40,000/- for mental agony and sufferings and Rs. 10,000/- as cost of the litigation.
O.P Nos. 1 & 2 appeared before this Forum and contested this case by filing written version. O.P No. 3 did not turn up before this case hence his case has been proceeded ex-parte vide Order No. 7 dated 06/08/2018. The case of O.P Nos. 1 & 2 that this case is bad for mis-joinder of necessary party. The O.Ps have alleged that after receiving the documents of treatment being case summary etc. the instant O.P scrutinized all documents and upon such scrutiny of the policy terms and condition, the O.P had rightly repudiated the cashless claim policy. The claims documents revealed that the claim made by the complainant for reimbursement of expenses incurred on Metabolic Syndrome and undergoing Gastric Bypass Surgery and the O.P submits that the insurance policy does not extend coverage for any expenses incurred on weight management services and treatment related to weight reduction programs including treatment of obesity. The O.P averred that as per terms and condition of the Star Package Policy the complainant is not entitled to get any claim and Weight Management Services and Treatment related to weight reduction programs including treatment of obesity. Both the O.Ps have prayed for dismissal of the case with exemplary cost.
The complainant and the O.Ps have filed evidence-on-affidavit separately and they also filed written argument in support of their respective cases. The complainant has filed some documents also.
We have heard argument from the side of the complainant. The O.P Nos. 1 & 2 did not make any oral argument though they have filed written argument in this case.
We have perused the materials on record meticulously. Considering the above pleadings the following issues are necessarily come out to consideration to reach just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s.2 (1)(d)(ii) of Consumer Protection Act, 1986 ?
- Has this Forum jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- Is the complainant entitled to get any relief/reliefs as he prayed for?
DECISION WITH REASONS
Considering the nature and character of the case all the points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience.
It is admitted position that the complainant started Health Insurance for himself and his family members with the opposite parties for the names “STAR PACKAGE” on and from 11/05/2016 vide Policy No. OG – 17 – 2404-8421-00000042 and it was renewed thereafter on the next year so, according to the provision of law. The complainant is a consumer u/s.2 (1)(d)(ii) of Consumer Protection Act, 1986 as he has invested the amount for service from the O.Ps for the health himself and his family members and he is entitled to get services from the O.Ps for the above reason so he is a consumer according to the provision of law.
The case has been filed before this Forum although the Head Office of O.P No. 1 situated at Pune and his Regional Office situated at Kolkata where from the policy was issued but according to provision of law this company has a Branch at Alipurduar which is within the territorial jurisdiction of this Forum so this Forum has territorial jurisdiction to try this case and claim amount is below Rs. 20,00,000/- which is also with the jurisdiction of this Forum.
In this case the complainant has the allegation that his Health Insurance Policy was enforced in the year 2017 amounting to Rs. 20,00,000/- he was suffering from Hypertension, Hypothyroid, Dyslipidemia, Obstructive Sleep, Apnoea (OSA) and Diabetic Retinopathy and he was treated at Apollo Hospital in Chennai where a “METABOLIC SURGERY” (Lap Mini Gastric Bypass) was done on 02/10/2017 has a life saving procedure and discharged on 04/10/2017 and after that operation, he claimed for reimbursement from the O.P company of the said amount but the O.P company refused to reimburse the same and it is not within the terms and condition of Health Insurance Policy for that reason he has filed this case for claiming of Rs. 4,50,000/- along with interest of Rs. @ 18% per annum for the cost of surgery compensation, Rs. 40,000/- for his mental agony and
sufferings and Rs. 10,000/- for litigation cost. Annexure - A is the document / certificate issuedby the doctor of Chennai Apollo Hospital from which it appears that “METABOLIC SURGERY” was done as a life saving procedure. The O.Ps case is very specific that it is a weight measurement service which is come within the purview of cosmetic surgery and according to terms and condition of Health Insurance he is not entitled to get any compensation or reimbursement at the same time. The O.Ps further stated that the complainant suffering from this disease for the last four years and at the time of initiation of a Health Insurance he did not disclose his disease for that reason he is not entitled to get any compensation of both parties adduced evidence from their part. According to Part – C (Page – 23), Serial No. 43 Pre-existing Disease is already been described in the Policy Book which reveals that “Any condition, ailment or injury or related condition(s) for which you had sings or symptoms, and / or were diagnosed, and / or received medical advice / treatment within 48 months to prior to the first policy issued by the insurer”. It appears that the complainant was suffering from the said disease since last four years prior to his surgery. He started the Health Insurance on 11/05/2016, the operation was done on 02/10/2017 that means at the time of starting the Health Insurance he was suffering from the said disease there is no such evidence from the side of the complainant that he disclosed his disease at the time of initiation of the Health Insurance with O.Ps company. Except annexure – A the complainant did not file any documents to show that he was treated by several doctor and it was opined by the doctor to undergo surgery which is the only option to him from acquiring the said disease. It is fact that by way of this operation by “METABOLIC SURGERY” he has reduced his fat we all know that this type of surgery is called as a cosmetic surgery and we all know that every surgery is a life saving procedure but the complainant did not file any documents to show that this surgery is the only way to coverage from his disease from the terms and condition of the insurance policy according to section 2 : B26 which is the terms and condition of the Health Insurance of these O.Ps clearly indicates that the weight measurement services and treatment relating to weight reduction programs including treatment of obesity is not come with the coverage of Health Insurance. This type of surgery is known as cosmetic surgery by which the weight has been reduced. The complainant had the knowledge by this terms as because his policy is clearly indicates the same but before going to the surgery he did not enquire the matter before the O.Ps whether he will get any reimbursement from this surgery or not when this type of surgery is not cover by this Health Insurance. The complainant will not get any benefit from this Health Insurance that apart he has suppressed his disease before starting this Health Insurance Policy which is also debar from getting reimbursement as per terms and condition. At the time of taking assessment of the case of the complainant we also go through the observations of the Hon’ble NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION in REVISION PETITION NO. 1272 OF 2014 (Against the Order dated 03/12/2013 in Appeal No.
680/2010 of the State Commission Gujarat) 1. BAJAJ ALLIANZ GENERAL INSURANCE
CO. LTD., 7TH FLOOR, BLOCK NO-4 DLF TOWER 15, SHIVAJI MARG,NEW DELHI - 110015 ........... Petitioner(s) Versus 1. VITTHALBHAI SHIVABHAI PATEL R/O 48, VIHAR SOCIETY,VITTHAL KANYA VIDHYALAY ROAD,NADIADDISTRICT : KHEDAGUJARAT ........... Respondent(s) which reveals that “Contract of insurance is based on utmost bona-fide and faith which in our opinion the respondent has not done so at the time of taking the policy. It is established from the record that as also the written submissions of the respondent that he has suppressed the material facts in regard to his pre-existing medical history at the time of taking the policy and thus has not approached the Consumer Forum with clean hands”.
In view of the materials on record as well as the citation made in above we find that the complainant filed this case without clean hands by suppressing his disease before taking the insurance policy and also we find that according to the terms and condition of the O.Ps the complainant is not entitled to get any benefit from this case as there is no deficiency in service from side of the Opposite Parties. The case is liable to be dismissed.
Thus all the points are disposed of accordingly.
Fees paid are correct.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and the same is dismissed on contest without costs.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
