ORDER

15.04.2024

Sh. Sanjay Kumar, President

1. In brief facts of the present case are that the complainant took the medical insurance policy of the OP in the form of Family Medicare Policy which covers the complainant; wife, minor son and minor daughter vide policy no.222700/48/13/06/00001650. The said Family Medicare Policy stands valid for the period w.e.f 12.09.2013 to 11.09.2014. A total premium amount of Rs.9945/- was paid and acknowledged by the OP. It is further stated that the said medical policy stands in continuation with the previous medical policies of the OP w.e.f 2008.

2. It is stated that the minor daughter of the complainant namely Ms. Khyati Gupta is 14 year of age and has been pursuing her studies in C.R.P.F. Public School, Rohini, Delhi. It is further stated that in the month of January, 2012 she felt severe weakness in her legs and weakness in the right leg aggravated to such an extent that she could not move without the help of other person. After detailed diagnosis, it was shockingly found that some tumor developed in her left lung which extends to her spinal cord. It is further stated that the presence of such tumor in the nervous system caused stress  over the veins responsible for movement in the right leg.

3. It is stated that the minor daughter of the complainant was admitted in the Indraprastha Appolo Hospital for necessary surgical interventions. It is stated that the minor daughter was subjected to two surgical operations in the month of April, 2012 and July, 2012. The complainant on the basis of his previous Family Medicare Policy filed two claims vide claim no.2421453 and 2290045 respectively. The OP passed both the said claims and amount claimed was duly reimbursed to the complainant through RTGS.
4. It is stated that even after the said two operations conducted on the minor daughter of the complainant; unfortunately she could not gain anticipated recovery. It is further stated that after the said two surgical interventions (Operations) the position of the minor daughter has been such that she cannot even stand on her feet’s as she is not feeling any sensation/strength in her lower limbs. It is stated that under such circumstances she has been restricted to bed and unable to stand independently. It is stated that the minor daughter, post operatively admitted in the Indraprastha Appolo Hospital on 04.11.2013 and she was discharged on 05.11.2013 wherein different medical and surgical tests were conducted upon the minor girl with a view to perform further necessary surgical interventions, if required An expenditure to this effect was incurred by the complainant to the tune of Rs.90,650/-. It is stated that a claim form vide claim no.9641770 was duly filed on 22.11.2013 with the OP alongwith relevant documents. On arbitrary grounds, the said claim of Rs.90,650/- was repudiated.
5. It is stated that the minor daughter of the complainant is suffering  from the same illness to which she was earlier operated upon twice, was again admitted in Indraprastha Apollo Hospital on 30.12.2013 and she was discharged on 31.12.2013. It is further stated that during such period she remained in Operation Theatre for sometime where she was injected anesthesia and various medical and surgical treatments was given to the minor daughter. It is stated that the discharge summary depicts that she was diagnosed with ailment of decompression of spine and its allied consequential medical ailments “decompression of spine ganglioneuroma dorsal spine with intrahoracic extentsion with parapaesis”. The complainant incurred medical expenditure and paid a sum of Rs.1,15,544/- in this connection. It is stated that a medical claim form dated 15.01.2014 was duly tendered before the authority appointed by the OP. The said claim of Rs.1,15,544/- was repudiated on 06.02.2014 under the exclusion clause 4.8 primarily on the ground that the said ailment is “congenital” and not payable as per the policy conditions.
6. It is stated that the repudiation and rejections of the complainant’s claim under its Family Medicare Policy is completely arbitrary, capricious, and baseless. It is further stated that the surgeon who conducted surgical interventions and post surgical remedial measures on the minor daughter of the complainant has medically opined in writing on 02.07.2014 that the ailment to which she suffering is not a “congenital problem”. It is stated that the OP before the repudiation of the complainant’s claim has not taken any step to ascertain about the “congenity” of the ailment. It is stated that Surgeon under the supervision of whom the entire process of medical and surgical carried  out was not at all consulted by the OP  before unnecessarily creating an arbitrary linkage between the ailment and congenital.
7. It is stated that the Surgeon who can tender a best judgment assessment has not been consulted by the OP before the arbitrary repudiation of the claim. Even the exclusion clause 4.8 under which the OP tried to defeat the legitimate claim of the complainant is ultra vires and outside the ambit of the facts and circumstances of the case. The word “congenital” as mentioned in the exclusion clause 4.8 is associated with external disease. The terminology used in such exclusion clause is “congenital external disease”. It is stated that minor daughter is suffering from a “decompression of spine ganglioneuroma dorsal spine with intrahoracic extention with parapaesis”. It is further stated that the ailment of this nature is completely internal which intrinsically developed due to a tumor found in the spine. The OP has not taken into account the fact that the minor girl has already been operated upon twice before she admitted again in the same hospital in connection with the same ailment. With respect to the two major operations operated upon her, the OP has duly paid the claim amount, however, this time it was rejected on flimsy ground, therefore, the repudiation of the claim is completely arbitrary, capricious and unjust.
8. It is stated that the complainant vide letter dated 21.08.2014 sent through speed post and personally handed over to the OP on 25.08.2014 requested the OP to review its earlier order as to repudiation of his said claim amount. Along with the said written letter the OP was apprised with the written opinion dated 02.07.2017 of Dr. Harsh Bhargava, M.S. (Ortho) Senior Consultant Indraprastha Apollo Hospital. Even after the service of the same the OP adhered to its illegal and arbitrary rejection of the claim.  It is further stated that due to the said conduct of the OP the complainant has undergone grave mental tension, pain and agony which cannot be explained in words.
9. The complainant is seeking direction to OP to pay the insurance claim amount of Rs.1,15,544/- with interest to the complainant and quash the repudiation letter dated 06.02.2014 of OP, to pay sum of Rs.20,000/- as compensation amount and to pay a sum of Rs.20,000/- as costs towards this complaint.
10. OP filed WS and taken preliminary objections that the complainant has not come with clean hands before this forum and as per the terms and conditions of the policy the complainant is not entitled to get any claim from this Hon’ble Forum and the present complaint is not maintainable and liable to be dismissed on this ground alone.
11. It is stated that complainant was insured vide Family Medicare Policy bearing policy no.222700/48/13/06/00001650 for period 12.09.2013 to 11.09.2014 with the OP for mediclaim in the name of Sh. Sushil Kumar Gupta and his family members namely Smt. Babita Gupta, Saksham Gupta  and Baby Khayti Gupta on certain terms and conditions. It is further stated that after receiving the claim of complaint for Rs.1,15,544/- the OP scrutinized the claim documents and found that the patient Ms. Khayti Gupta was admitted in Appollo Hospital on 30.12.13 with Diagnosis as case of decompression of spine ganglioneuroma dorsal  spine  intrathoracic extentsion with araparesis and conservative management was done. It is found that the ailment is congenital and not payable as per policy conditions hence claim is denied under Exclusion clause 4.8. It is stated that the Exclusion 4.8 is “Convalescence, general debility; run-down condition or rest cure, congential external disease or defects or anomalies, sterility, Veneral disease, intentional self injury and use  of intoxication drugs/alcohol”. And duly in formed complainant about repudiation of claim vide letter dated 06.02.2014. It is stated that the present complaint filed by the complainant is without cause of action and liable to be dismissed under order 7 rule 11 CPC.
12. On merit all the allegations made in the complaint are denied by OP and reiterated contents of preliminary objections. It is stated that the daughter of complainant did not suffer from congenital. It is further stated that the TPA having a team of best doctors and after gone through the treatment record found that claim is not payable under exclusion clause 4.8 and as per terms and conditions of the policy OP rightly repudiated the claim. It is stated that complaint is liable to be dismissed.
13. Complainant filed replication to the WS of OP and denied all the allegations made in the WS and reiterated contents of complaint.
14. Complainant filed evidence by way of his affidavit and reiterated contents of complaint. Complainant relied on photocopy of cover note of insurance policy alongwith terms and conditions Ex.CW1/1, photocopy of claim form and all documents filed Ex.CW1/3 (Colly.), photo copy of repudiation order dated 06.02.2014 Ex.CW1/4, photocopy of opinion of Senior Surgeon (Orthopadic) Dr. Harsh Bhargava, Indraprastha Apollo Hospital Ex.CW1/5 and copy of letter dated 21.08.2014 sent through speed post alongwith acknowledgment of OP on 25.08.2014 Ex.CW1/6.

15. OP filed evidence by way of affidavit of Raj Kumar Sirova Divisional Manager and reiterated contents of WS. OP relied on copy of letter dated 06.02.2014 Ex.OPW1/1 and copy of terms and conditions of insurance policy Ex.OPW1/2.
16. Written arguments filed by complainant as well as by OP.
17. We have heard complainant. However neither OP appeared nor AR appeared despite given ample opportunities. We have gone through written arguments filed on behalf of OP.
18. It is admitted case of the parties that complainant had got issued medical insurance policy from OP i.e “Family Medicare Policy” covering himself, his wife, minor son and daughter. The policy no. is 222700/48/13/06/00001650 and valid for the period 12.09.2013 to 11.09.2014. The complainant had paid premium amount of Rs.9945/-. It is further admitted case of the parties that complainant’s minor daughter Ms. Khyati Gupta had undergone treatment at Indraprastha Apollo Hospital after diagnosis that she had developed some tumor in her left lung which extends to her spinal cord. The daughter undergone operation and remained admitted in Indrapratha Apollo Hospital on 04.11.2013 and discharged on 05.11.2013 and complainant incurred expenditure of Rs.1,15,544/-.
19. It is admitted case of parties that a claim filed with OP insurance  company on 15.01.2014. The Insurance company repudiated the claim vide letter dated 06.02.2014. The repudiation letter is reproduced hereunder”-

Exclusion  clause 4.8-

Convalescence, general debility; run-down condition or rest cure, Congenital external disease or defects or anomalics, Sterlity, Veneral disease, intentional self injury and use of intoxication drugs/alcohol.

On scrutiny of claim documents it is found that patient was admitted in Apollo Hospital on 30.12.2013 with diagnosis as case of decompression of spine ganglioneuroma dorsal spine intrathoracic extension with paraparesis and conservative management was done. It is found that the ailment is congenital and not payable as per plicy conditions  hence claim is deny under excl-4.8 hence we regret our inability to admit this liability under present policy conditions & this claim is being repudiated and same is not payable.

20. The complainant challenged the repudiation letter and filed on record a certificate issued by Dr. Harsh Bhargava, Indrapratha Apollo Hospital dated 02.07.2014. In this certificate treating doctor specifically mentioned that Ms. Khyati Gupta was suffering from ganglioneuroma dorsal lumber spine with kyphpscolosisi with paraparesis and underwent major spinal surgery. This is not a congenital problem. The OP due to best reason known to them did not examine all the medical documents and the certificate issued by treating doctor from their own panel of doctors. In the repudiation letter no reasons have been explained and no medical document in support or opinion mentioned or filed to establish that the ailment is congenital. On the other hand complainant provided all the medical documents and certificate of treating doctor Dr. Harsh Bhargava. In these circumstances we are of the considered view as per material available on record that the repudiation letter dated 06.02.2014 is unjust and arbitrary.
21. On the basis of above observations and discussions we hold OP Insurance company guilty of deficiency of services and direct it as under:-

(i). To pay Rs.1,15,544/- alongwith 6% interest p.a from the date of filing of complaint till realization.

(ii). To pay Rs.25,000/- compensation.

(iii). To pay Rs.10,000/- litigation expenses.

22.  In case OP failed to pay Rs.1,15,544/- and cost of Rs.25,000/- within 30 days from the date of receipt of this order, then liable to pay interest at the rate of 9% per annum on the above said amounts till realization. File be consigned to record room.
23. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  15.04.2024.

SANJAY KUMAR                 NIPUR CHANDNA                         RAJESH

       PRESIDENT                             MEMBER                                MEMBER