State Consumer Disputes Redressal Commission
New India Assurance Co. Ltd. vs Yogesh Goyal on 6 April, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.178 of 2015
Date of institution: 12.02.2015
Date of decision: 06 .04.2016
New India Assurance Co. Ltd., Divisional Office, 7, Gulabi Bagh.
G.T. Road, Moga having its registered office at 87, Mahatma
Gandhi Marg, Fort, Mumbai - 400001 through its Regional Office,
SCO Nos. 36-37, Sector 17-A, Chandigarh through its Regional
Manaer Sh. R.N. Gupta.
...Appellant/OP No.1
Versus
1. Yogesh Goyal (aged 51 years) son of Sh. Braham Dutt Goyal
son of Sh. Ishar Dass, resident of Green Park, Duneke, G.T.
Road, Moga, District Moga (Punjab).
Complainant/Respondent
2. Raksha TPA Private Limited, SCO 122, Basement, Feroze
Gandhi Market, Ludhiana.
......Proforma Respondent
First Appeal against the order dated
23.12.2014 passed by the District
Consumer Disputes Redressal
Forum, Moga.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Sh. Jasbir Singh Gill, Member
Smt. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Navin Kapoor, Advocate
For respondent No.1 : Sh. P.K. Kataria, Advocate
For respondent No.2 : None
2nd Appeal
First Appeal No.146 of 2015
Date of institution: 06.02.2015
Date of decision: .04.2016
Yogesh Goyal son of Shri Braham Dutt Goyal son of Sh. Ishar
F.A. No. 178 of 2015 2
Dass, resident of Green Park, Duneke, G.T. Road, Moga, District
Moga (Punjab).
...Appellant/Complainant
Versus
1. The New India Assurance Company Limited, Divisional Office,
7, Gulabi Bagh, G.T. Road, Moga, through its Divisional
Manager.
2. Raksha TPA Private Limited, SCO 122, Basement, Feroze
Gandhi Market, Ludhaina.
....Respondents/Opposite Parties
First Appeal against the order dated
23.12.2014 passed by the District
Consumer Disputes Redressal
Forum, Moga.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Sh. Jasbir Singh Gill, Member
Smt. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. P.K. Kataria, Advocate
For respondent No.1 : Sh. Navin Kapoor, Advocate
For respondent No.2 : None
MRS. SURINDER PAL KAUR, MEMBER:-
ORDER
This order will dispose of both the above mentioned appeals as these appeals are arising out of the impugned order dated 23.12.2014 passed in Consumer Complaint No.84 dated 22.07.2014 by the District Consumer Disputes Redressal Forum, Moga (in short the "District Forum") vide which complaint filed by the complainant was allowed and OP No.1 was directed to refund of Rs. 1,45,337/- as a medical claim alongwith Rs.10,000/- as compensation for harassment and Rs.3000/- as litigation costs to the complainant within 30 days from the date of the receipt of the copy of this order, failing which F.A. No. 178 of 2015 3 complainant will be entitled to recover interest @ 6% per annum from the date of filing the complaint till realization.
2. Complaint was filed by the complainant under Section 12 of the Consumer Protection Act 1986(in short `the Act') against OPs on the averments that since 2000, complainant got insured under medi claim policy with OP No.1 and lastly he got insured under medi claim policy No.36110034101100000040 which was valid for a period 21.06.2010 to 20.06.2011. In the month of July 2010, he felt restlessness during sleeping. His blood pressure had increased. Complainant started remaining under depression as such he consulted Dr. Kuldeepak S.Kular, MBBS, MS (Surgery) MIS (Laparoscopy) Specialist (USA). On 02.07.2010, the complainant was diagnosed as a patient of morbid obesity and advised Laparoscopic sleeve Gastrotocomy. On the advice of the doctor, the complainant remained admitted in the hospital from 02.07.2014 to 06.07.2014, where surgery was performed and he spent an amount of Rs.1,45,337/- on his treatment. Due intimation was given to OP No.1 in this regard. After getting the treatment, complainant approached OP No.1 along with documents with a request to reimburse his bill under the policy but his claim was recommended to be rejected by OP No.2 on the ground that it was a cosmetic surgery and was not covered under the medi claim policy, which was wrong and illegal. In spite of repeated requests his claim was not processed and no intimation was ever given to him. This act of the OPs amounted to deficiency in their service. At last , he filed the complaint before the District Forum seeking following directions against OPs.
(1) to pay Rs.145337/- as medical claim;F.A. No. 178 of 2015 4
(2) to pay Rs.50,000/- as compensation for mental tension and harassment;
(3) to pay Rs.20,000/- as litigation costs.
3. Complaint was contested by OP No.1 who filed written reply by taking preliminary objections that the complainant had no locus-standi to file the present complaint; there was no deficiency in their service. Complainant had not approached this Forum with clean hands. Complainant had filed the false and frivolous compliant therefore, the same was not maintainable and that claim of the complainant was not payable under Clause 4.4.6 of the insurance policy and repudiated on the recommendation of OP No.2. On merits, it was admitted that complainant had purchased the medi-claim policy which was valid for the period as mentioned in the complaint. The relevant documents and medical bills were forwarded to TPA (Third Party Administrator). After verifying the documents TPA observed that "Patient was admitted and diagnosed morbid obesity and laparoscopic gastric bypass surgery was done on 03.07.2010. Morbid obesity and laparoscopic gastric bypass surgery falls under the exclusion clause 4.4.6 of the policy, Therefore, the claim was repudiated on the recommendation of TPA and the claim file of the complainant was closed as no claim and complainant was in formed, vide letter dated 20.12.2010. The claim of the complainant was repudiated as per the terms and conditions of the policy. There was no deficiency in their service and prayed for dismissal of the complaint with costs.
4. On 13.10.2014, Sh. Dinesh Kumar Adv. Appeared on behalf on OP No.2 but after that he did not appear before the District Forum therefore, OP No.2 was proceeded against ex-parte on 20.10.2014. F.A. No. 178 of 2015 5
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of the averments, the complainant had tendered into evidence his affidavit Ex.C-1 along with other documents Ex.C-2 to Ex.C-38 and closed his evidence. On other hand OPs had tendered into evidence affidavit of Sh. R.M. Bhatnagar, authorized officer, New India Assurance Co. Ltd., Ludhiana as Ex.OP1/1 along with other documents Ex.OP-1/2 to Ex.OP-1/5 and closed their evidence.
7. After going through the allegations alleged in the complaint, written reply filed by OPs, evidences and documents brought on the record, the learned District Forum allowed the complaint as referred to above.
8. Aggrieved against the order passed by the Ld. District Forum, OPs have preferred the present appeal.
9. We have heard learned counsel for the parties and carefully gone through the record of the District Forum. FIRST APPEAL No.178 OF 2015
10. It was submitted by the learned counsel for OPs that the District Forum has failed to consider that Morbid Obesity was not a simple medical condition, the same was cosmetic surgery, which fell under the exclusion clause 4.4.6 of the policy. This exclusion clause was not properly appreciated by the District Forum and wrongly allowed the complaint. He prayed for to set aside the impugned order and to dismiss the complaint.
11. On the other hand counsel for the complainant had submitted that District Forum had returned the correct findings that Morbid obesity was a disease and did not fall under the exclusion clause 4.4.6 of the policy. He prayed for dismissal of the appeal. F.A. No. 178 of 2015 6
12. We have considered the contentions of both the parties. It was specifically alleged by the complainant that In the month of July 2010, he felt restlessness during sleeping. His blood pressure had increased. Complainant started remaining under depression as such he consulted Dr. Kuldeepak S.Kular, MBBS, MS (Surgery) MIS (Laparoscopy Specialist USA). On 02.07.2010, the complainant was diagnosed as a patient of morbid obesity and advised Laparoscopic sleeve Gastrotocomy. On the advice of the doctor, the complainant remained admitted in the hospital from 02.07.2014 to 06.07.2014, where surgery was performed and he spent an amount of Rs.1,45,337/- on his treatment. Whereas, ops alleged that complainant was diagnosed as morbid obesity and laparoscopic gastric bypass surgery was done. It was cosmetic surgery and the same falls under the exclusion clause 4.4.6 of the policy. For ready reference this clause is referred as under:-
"Convalescence general disability, ' Run-down' or rest cure obesity treatment and its complications, congential external disease/defects or anomalies, treatment relating to all psychiantric and psychosomatic disorders, infertility, sterility, use of intoxiating drugs/alcohol, use of tobacco leading to cancer".
As per the discharge summary Ex. C24, "the chief complaints were Morbid Obesity with BMI of 40.0 kg/m.sq, breathlessness on exertion, sleep apnoea,Appendectomy 20 years back" Morbid obesity is a medical term describing people who have a Body Mass Index (BMI) of 40, or of 35 to 40 with significant medical problems caused by or made worse by their weight. BMI of 40 amounts to approximately 100 pounds above ideal weight. Severely overweight health risks. High blood pressure. Diabetes.
F.A. No. 178 of 2015 7
"Morbid Obesity is a serious disease that has been linked to shortened life expectancy." it is clear that 'Obesity' is a common medical condition, but 'Morbid Obesity' is considered as a disease which leads to many ailments. There is no evidence on record to prove that the treatment undergone by the complainant was in the nature of cosmetic surgery. As per medical jurisprudence, Morbid Obesity leads to various serious health problems like cancer, heart disease, metabolic syndrome, diabetes etc. and the diseases which are the result of Morbid Obesity. Morbid obesity is not cosmetic surgery and same view has been taken by this Commission in First Appeal No.1687 of 2010. The District Forum rightly observed that Morbid Obesity is not cosmetic surgery, therefore, the claim of the complainant did not fall under the exclusion clause of the policy.
13. In view of the above discussion the order passed by the District Forum is perfectly correct order. We affirm it. We do not see any merit in the appeal and the same is hereby dismissed.
14. The appellants/OPs had been deposited a sum of Rs. 25,000/- at the time of filing of the appeal. They was further deposited a sum of Rs.50,000/- in compliance of order dated 25.02.2015. Both these amounts along with interest which had accrued thereon, if any, shall be remitted by the registry to respondent/complainant by way of a crossed cheque/ demand draft after the expiry of 45 days of the sending of certified copy of the order to the parties subject to stay if any by any higher Fora/ Court.
First Appeal No. 146 of 2015
15. This appeal has been filed by the complainant for modification of the impugned order of the District Forum on the ground F.A. No. 178 of 2015 8 that he was entitled to the interest as per normal rate of Bank interest @ 9% per annum instead of 6% per annum which was granted by the District Forum while allowing the complaint. Normal bank rate of interest is @ 7.5% per annum. Therefore, we are of the opinion that the complainant should have been allowed interest at least 7.5% per annum.
16. In view of the above discussion we partly allow this appeal instead of 6% per annum interest it is ordered to be awarded @ 7.5% per annum from the date of filing the complaint till realization.
17. The arguments in this appeal were heard on 29.03.2016 and the order was reserved. Now, the order be communicated to the parties as per rules.
18. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (SURINDER PAL KAUR) April 6, 2016 MEMBER SK F.A. No. 178 of 2015 9