BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 10^TH DAY OF NOVEMBER 2022

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. To pass an order directing the OPs to clear and reimburse the legitimate claim of Rs.1,25,000/- to the complainant.
2. For mental agony, trauma and hardship – Rs.20,000/-
3. Cost of legal expenses quantified at Rs.30,000/-, thus totaling to a sum of Rs.1,75,000/- together with an interest at the rate of 18% from the date of repudiation.
4. To pass any such orders.

2. The case set up by the complainant in brief is as under:-

The complainant has undertaken an insurance policy under senior citizen red carpet health insurance policy by paying prescribed premiums towards the policy bearing No.P/141124/01/2022/002806 and it is for the period 16.06.2021 to 15.06.2022.

3.       The complainant was experiencing severe pain in both knee joints and decided to seek medical investigation by way of x-rays of knees (AP & Lateral view) which revealed the presence of osteoarthritis, based on the reports the medical advise was to undergo treatment using sequentially programme magnetic therapy (SPMF therapy) for 21 days at SBF Health care and research centre.  During the treatment the affected joints were treated using the SPMF therapy every day followed by physiotherapy continuously for 21 days. There was a substantial relief from the pain after the treatment and has increased his mobility substantially which enabled the complainant to resume his normal day to day activity.  

4.       The complainant has spent a sum of Rs.1,25,000/- for treatment and the same was paid to the SBF health care and research centre. After having obtained the necessary details of the treatment afforded to him he has filed a reimbursement claim with the OP1 for reimbursement of the amount spent towards availing the treatment of SPMF therapy.  The same was repudiated by the OP1 vide letter dated 03.11.2021 on the following grounds;

“As per 3. Exclusion – Unproven Treatments – Code Excl 16 of the above policy, the company is not liable to make any payment in respect of any expenses related to any unproven treatment, services, and supplies for or in connection with any treatment.  \Unproven treatments are treatments, procedures or supplies that lack significant medical documentation to support their effectiveness..”

5.     In this regard the complainant has addressed a legal notice dated 21.02.2022 to the OPs to reconsider the claim of the complainant and to reimburse the amount for which the complainant is eligible.

6.     It is further case of the complainant that the reason given by the OP1 is duly illegal unwarranted and a legitimate claim of the complainant was rejected only in order not to pay the amount expended by the complainant.  This complainant has taken the treatment for severe joint pains namely osteoarthritis.  The only effective remedy was to undergo knee replacement surgery, which was not only time consuming but also expensive covering a number of days of hospitalization.  

7.     It is further case of the complainant that Wg.Cdr. Dr.V.G.Vasista(Retd) who has an MD in radiology has conducted extensive research in the said field which indicated substantial relief to several patients.  The doctor has successfully treated hundreds of patients from different walks of life and also such dignitaries as her Excellency Ms. Prathibha Patil, Former President of Hon’ble India, Ms.Renuka Choudhary, Former Hon’ble Minister of Women and Child Development., Air Chief Marshal I.H.Latif(Retd) former chief of Air Staff, Ambassador of France, Governor of Maharashtra and Governor of Uttarkhand, who have given Laudable remarks, commending the treatment afford to them.  In the wake of success of medical research of Wg. Cdr of V.G.Vasista the Karnataka State Government has designated him with Suvarna Karnataka Rajyotsava Award which speaks for itself.

8.     It is further grievance of the complainant that as per the terms and conditions of the policy there is no whisper that the treatment for osteoarthritis is precluded from seeking reimbursement.  Further the same fact has also survived the test of the Hon’ble Consumer Commission and cannot be considered as a ground for repudiation.  The OPs have committed a grave deficiency in service by not clearing by legitimate claim of the complainant.  The negligence on the part of the OP has caused serious mental agony, trauma and hardship not only to the complainant but also to the family of the complainant.  Hence the complainant has filed this complaint.

9.     In response to the notice, OP appears and files version, admitted the fact that the complainant has availed the Senior Citizen Red Carpet Health Insurance Policy and the sum insured was Rs.10,00,000/- and it is in force from 16.06.2021 to 15.06.2022 covering the risk of the complainant.  It is also the case of the OP that the policy is contractual in nature and the claims arising therein are subject to the terms and conditions of the policy. As per the terms and conditions of the policy specifically states that the insurance company is not liable to pay any claim if there is any misrepresentation of material fact by the insured to the insurer.  The complainant has accepted the policy and he is being fully aware of the terms and conditions of the policy.

10.   The OP has admitted the claim made by the complainant for having taken treatment at SBF health care and research centre for the diagnosis and treatment of OA changes – both knee (GD-IV) with virus deformity.  The OP further readmitted that the complainant has submitted documents for reimbursement of the medical expenses.  On scrutiny of the documents submitted by the complainant it was observed from the investigation and hospital records including discharge summary that the complainant has undergone SBMF therapy for which the company is not liable to pay the claim as per exclusion  No.26 of the policy.  

11.   The OP has reproduced the exclusion No.26 of the policy which reads as follows;

“The company shall not be liable to make any payments under this policy in respect of any expenses what so ever incurred by the insured person in connection with or in respect of;”

12.   The company shall not be liable to make any payments under this policy in respect of any expenses whatsoever incurred by the insured person in connection with or in respect of.

No.26.: Expenses incurred on enhanced external counter pulsation therapy and related therapies chelation therapy, hyperbaric oxygen therapy, rotational field quantum magnetic resonance therapy, vax-D, low level laser therapy, photo dynamic therapy and such other similar therapies – Code Excl-26.

13.     It is further case of the OP that the SPMF therapy is unproven treatment for the above diagnosis. As per the terms and conditions of the policy and condition and exclusion clause 16 of the policy the company is not liable to pay any payment in respect of any expenses related to any unproven treatment, services and supplies for or in connection with any treatment, unproven treatments are treatments, procedures or supplies that lack significant medical documentation to support their effectiveness.  Hence the OP rejected the claim and the same was communicated to the insured vide letter dated 03.11.2021.  The said decision was taken by the OP as per the terms and conditions of their policy and based on the claim documents and details submitted by the complainant and hospital authorities.  Hence the OP has rejected the claim of the complainant on 03.11.2021.

14.     It is further contention taken by the OP that it is settled law that the 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 the policy.  It refers to the contract and the 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 vide open, they have to relay on the terms of the contract.  Hence the insurance company and the insured have to follow all the terms and conditions of the policy correctly.  The OP has also mentioned the decisions given by the Hon’ble apex court relating to the terms and conditions of the policy, hence prayed for dismissal of the complaint.

15.     The complainant has filed her affidavit evidence and relies on 05 documents.  Affidavit of evidence of OPs have filed and OPs relies on 03 documents

16.     Heard the arguments of advocate for the complainant only.  No oral argument is advanced on behalf of OP.  Perused the written arguments.

17.     The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

18. Our answers to the above points are as under:

       Point No.1:  Affirmative

      Point No.2: Affirmative in part

      Point No.3: As per final orders 

REASONS

19.    Point No.1 AND 2: It is undisputed fact that the complainant has availed the senior citizens red carpet health insurance policy by paying the prescribed premium vide policy No.P/141124/01/2022/002806 for the period 16.06.2021 to 15.06.2022.  It is the main grievance of the complainant that he was experiencing severe pain in both knees and decided to take medical investigation.  As per the x-ray it is revealed the presence of osteoarthritis in both the knees.  At that time a therapy for recession of osteoarthritis in the name of Sequentially Programme Magnetic Field Therapy (SPMF therapy) was found.  This treatment is not only non-invasive and painless and it also costs the lesser financial burden to the complainant.  Due to various age and health related reason as well as financial consideration knee replacement was not viable and the complainant has choosen to undergo the SPMF therapy at SBF Health care and research centre at Bangalore for 21 continuous days.  Subsequent to the treatment the complainant has shown considerable recovery and without any difficulty was able to resume to his normal day to day life.  

20.     The complainant has spent to Rs.1,25,000/- for treatment and he has consequentially made claim to the OP for the amount.  The OP has repudiated the claim on the ground as per clause 3 code 16 of the terms and conditions of the policy schedule dealing with exclusions the company is not liable to make the payment in respect of any expenses related to any unproven treatment, services and supplies for or in connection with any treatment.  After that the complainant has also got issued legal notice.  When the OP has failed to make any payment he was forced to approach this commission for claiming the refund of the amount.  

21.     On the other hand, the only contention taken by the OP is that as per the terms and conditions of the policy and condition and exclusion clause 16 of the policy the company is not liable to make any payment in respect of any expenses related to any unproven treatment.  Hence they have rejected the claim and the same was communicated to the complainant vide letter dated 03.11.2021.  

22.     It is also the contention taken by the OP that the terms of the policy shall govern the contract between the parties and 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 the policy.  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 entered into a contract of insurance with their eyes wide open they have to relay on the contract.  

23.     The complainant in support of his contention has also relied on the decision reported in New India Assurance –vs- Ishu Motwani in Rev. petition No.2362/2014 before the NCDRC.  In this case the Hon’ble NCDRC has held that

“Issuing a policy to a person of 61 years of age and then stating that ‘age related diseases’ are excluded amounts to unfair trade practice.  When SPMF Therapy is not specifically excluded, the act of the opposite parties in repudiating the claim on the ground that the treatment is similar to RFQMR without adducing any expert evidence to that effect or filing the affidavit of any doctor to evidence the same, amounts to deficiency of service.”

24.     The complainant has also relied on the circular No.IRDA/HLTH/MISC/CIR/216/09/2011 dated 20.09.2021, wherein it was held that

‘the insurers’ decision to reject a claim shall be based on sound logic and valid grounds…Rejection of claims on purely technical grounds in a mechanical fashion will result in policyholders losing confidence in the insurance industry, giving rise to excessive litigation.’

25.     The complainant further relied on the decision reported in Oriental insurance company –vs- Thomas D Silva and another and this is the order passed by the KSCDRC, in appeal No.1245/2016 and it is clearly held in this decision.  The repudiation of the claim by the insurance company on the grounds of the therapy being experimental or unproven are amounts to deficiency in service and awarded compensation to the complainant.  

26.     A similar view was taken in M/s ICICI Lombard General Insurance and another –vs- Swapna Guha, in A.No.2111/2018, wherein the Hon’ble KSCDRC upheld the decision of the District Commission which allowed the claim of the complainant stating that the repudiation by the insurance company amounts to deficiency in service.

27.     The complainant has also relied on the decisions of this Commission in Smt.Snehalatha Gandhi –vs- United India Insurance company in CC No.926/2019 and also Smt.Rashi Gandhi –vs- United India Insurance Company in CC No.925/2019, wherein this Commission held that the repudiation of the claim of the complainant amounts to unfair trade practice when SPMF therapy is not specifically excluded.

28.     The OP has taken another objection stating that the contract of insurance is the one similar to any other contract and the same should be construed strictly without adding or deleting anything from the terms there off.

29.     In this regard the complainant has also relied on the decision Hon’ble Supreme Court reported in AIR 2020 SC 1395 in Gurshinder Singh –vs- Sriram General Insurance Company Ltd., in this case the Hon’ble Supreme Court held that

The joint intention of the parties is taken into consideration for interpretation of the contract.  However in most standard form contracts that is not so.  In this regard the court in such circumstances, it consider the application of the rule of contra proferentem, when ambiguity exists and an interpretation of the contract is preferred which favors the party with lesser bargaining power.

We find, that this Court in Om Prakash (supra) has rightly held that the Consumer Protection Act aims at protecting the interest of the consumers and it being a beneficial legislation deserves pragmatic construction.”

30.     It is also clearly held by the Hon’ble High Court of Orissa in Anupama Behera and others –vs- LIC of India and others reported in AIR 2010 Orissa 93, wherein it is held that

“16. The Insurance policy, apart from it special feature, is a contract between a person seeking to be insured and the insurer.  In interpreting the terms of contract of insurance, they should receive fair, reasonable and sensible construction in consonance with the purpose of the contract as intended by the parties.  Emphasis in such cases is laid more upon a practical and reasonable, rather than, on a literal and strained construction.  In interpreting the contract of insurance neither the coverage under a policy should be unnecessarily broadened, nor should the policy be rendered ineffective inconsequence of unnatural or unreasonable construction.  An attempt should be to construe a contract in liberal manner so as to accomplish the purpose or the object for which it is made.  \In the absence of ambiguity, neither party can be favoured but where the construction is doubtful, the courts lean strongly against the party who prepared the contract.  Where there is a susceptibility of two interpretations, the one favourable to the insured is to be preferred.”

31.     We have also gone through the oral and the documentary evidence adduced by both the parties. On perusal of the copy of the policy produced by the complainant as per Ex.P2, clearly discloses that the SPMF therapy is not specifically excluded in the policy. It is clear from the medical report and the policy produced by the complainant and also OP that the health insurance policy was issued to the complainant on 02.06.2021.  The age of the complainant is shown as 77 years and it is a senior citizen red carpet health insurance policy and the sum assured is Rs.10,00,000/-.  The medical report issued by the SBF health care and research centre discloses that the complainant has consulted the doctor on 04.08.2021 and he was diagnosed as OA changes both knees (Gd-iV) with varus and he underwent SPMF therapy for 21 consecutive days for both knees followed by physiotherapy from 01.09.2021 to 21.09.2021. The hospital has given a consolidated invoice stating that the cost of the treatment for both the knees is Rs.1,25,000/- and physiotherapy charges R.6,700/- and they have given some reduction in the bill and they have prepared the bill for Rs.1,18,300/-.  After that the complainant has claimed the amount by presenting the claim application with document to the OP company. The OP company have repudiated the claim as per Ex.P4 stating that they are unable to settle the claim as per their policy conditions.  After that the complainant has issued notice as Ex.P5 to the OP and the OP have not given any reply to the said notice even after service of the notice. When the SPMF therapy treatment is not at all excluded in the policy, it is the duty of the OP to pay the claim raised by the complainant. The OPs have issued the policy and they are very much aware that the complainant is a senior citizen.  When the complainant aged about 77 years and a senior citizen, he is suffering from age related illness and that cannot be ruled out.  When the treatment taken by the complainant is not specifically excluded and as per the decision cited above, the act of the OP amounts to unfair trade practice.  If merely the SPMF therapy is specifically excluded the OP would have adduced any expert evidence to that effect or filing the affidavit of any doctor to evidence the same which amounts to deficiency of service.

32.     It is also observed by this Commission while disposing off CC No.925/2019 dated 20.06.2020 that in similar types of cases the claim for reimbursement is allowed in the state of Chandigarh, Punjab, Haryana, Himachal Pradesh, Jammu and Kashmir as per the order passed by the insurance Ombudsmen which can be seen in the case No.GIC/271/UII/11/07 in the matter of Somnath Gupta –vs- United Insurance Company limited.

33.     Under these circumstances the complainant has clearly established the deficiency of service and also unfair trade practice on the part of the OP.  Hence the complainant is entitled for the relief in part. Therefore we answer point No.1 in affirmative and 2 in partly affirmative.

34.    Point No.3:- Accordingly the complaint has to be allowed in part.  The OP is directed to reimburse the claim amount of Rs.1,25,000/- to the complainant with interest at 8% p.a., from the date of repudiation as per Ex.P4 dated 03.11.2021 till the date of realization.  The OP is further directed to pay Rs.20,000/- towards mental agony, trauma and hardship suffered by the complainant.  The complainant is also entitled for Rs.10,000/- towards cost of litigation.  The complainant is totally entitled for Rs.1,55,000/-. In view the discussion referred above we pass the following,

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to reimburse the claim amount of Rs.1,25,000/- to the complainant with interest at 8% p.a., from the date of repudiation i.e., 03.11.2021.
3. OP is further directed to pay Rs.20,000/- towards mental agony and Rs.10,000/- towards cost of litigation to the complainant. 
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.1,25,000/- till final payment.
5. Furnish the copy of this order and return the documents to the complainant with extra pleadings.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 10^th day of NOVEMBER, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;