State Consumer Disputes Redressal Commission
United India Insurance Company Ltd. vs Nikhil Gupta on 17 August, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 878 of 2014
Date of institution : 01.07.2014
Date of decision : 17.08.2015
1. United India Insurance Company Ltd., through its
Manager/Executive Officer, Regd. & Head Office, 24, White Road,
Chennai-600014. Through its duly constituted attorney Dr. S.K. Takyar,
Manager.
2. United India Insurance Company Ltd., through its
Manager/Executive Officer, 108 Surya Tower, 3rd Floor, Mall Road,
Ludhiana. Through its duly constituted attorney Dr. S.K. Takyar,
Manager.
.......Appellants/OppositeParties No.1 & 2
Versus
1. Nikhil Gupta S/o Sh. Suresh Gupta C/O M/S Suresh Textile Bagh
Wali Gali, Ludhiana.
........Respondent No 1/Complainant
2. M/S Vipul Medicare TPA Pvt. Ltd., 515, Udyog Vihar, Phase-V,
Gurgaon, through its Chief Executive Officer.
Respondent/OppositepartyNo.3
First Appeal against the order dated
28.05.2014 passed by the District Consumer
Disputes Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Smt. Surinder Pal Kaur, Member.
Present:-
For the appellant : Sh. Parminder Singh, Advocate
For respondent No.1 : Sh. Nitin Jain, Advocate
For respondent No.2 : Ex-parte
F.A. No. 878 of 2014 2
MRS. SURINDER PAL KAUR, Member
ORDER
The appellants/Opposite Parties (hereinafter referred as the OPs) have filed the present appeal against the order dated 28.05.2014 passed by the District Consumer Disputes Redressal Forum Ludhiana (hereinafter referred as the District Forum) in Consumer Complaint No.848 of 14.11.2013, vide which, the complaint filed by the respondent/complainant (hereinafter referred as complainant) was allowed and OPs were directed to pay the claim of the complainant, as per terms and conditions of the policy and also pay Rs.3,000/- as compensation for harassment and Rs.2,000/- for litigation costs.
2. A consumer complaint was filed by the complainant under the Consumer Protection Act 1986(in short 'the Act') against the OPs where in complainant averred that he had taken health insurance policy from OP No.2 which was valid from 17.03.2013 to 16.03.2014. The sum insured of the policy was Rs.2,75,000/-. The commencement of the said policy was from 1999 and he was regularly renewing the policy. He never lodged any claim with OPs. Unfortunately, he suffered from eye disease of Myopia in both the eyes, which was being treated by Dr. G.S. Dhami in "Dhami Eye Care Hospital Kitchlu Nagar, Ludhiana. In 2013, the disease of his eyes reached at high level and Dr. G.S. Dhami suggested him for ICL surgery on 28.04.2013 and he sent a pre- authorization request to OP No.3 i.e. Third Party Administrator. (TPA) of OP No.1 &.2 regarding the ICL Surgery of the eyes of the complainant on 08.05.2013, on the basis of cashless facility. Against the said request, TPA demanded some information and documents vide their letter dated 02.05.2013, which were provided by the complainant as per their demand. Complainant was not in a position to pay the estimated amount given by the Dhami Hospital at Ludhiana. After making arrangements of money as per the estimate given by Dr. G.S. Dhami complainant was admitted in hospital on 22.06.2003 and on the same day intimation regarding the hospitalization and ICL surgery was sent to OPs. F.A. No. 878 of 2014 3 Complainant was discharged on 23.06.2013. On the above said treatment, he spent an amount of Rs.1,22,737/-. Complainant submitted his claim with OP No.2 alongwith documents, which were received by them. Instead of settling the claim of the complainant, OP No.2 repudiated his claim vide letter dated 05.09.2013 under clause 4.4 of the policy. In response of above said letter dated 05.09.2013, Dr. G.S.Dhammi issued a letter dated 09.09.2013, in which it was mentioned that "it is not a contact lens. It is implantable Collamer lens surgically implanted in the eyes in front of natural lens of eye. These lenses are implanted in very high myopia where even contact lens and spectacles are ineffective to give useful good vision". Therefore, clause 4.4 of the policy was not applicable to the complainant. Dr. G.S.Dhammi in the pre-authorization form specifically mentioned that the complainant needed implantable collamer lenses (ICL) in both the eyes. The repudiation of the claim of the complainant by OPs amounted to deficiency in services and unfair trade practices on their part. He also sent a legal notice dated 14.10.2013, through registered post to OPs and requested them to pay the claim amount but they sent a false and frivolous reply dated 28.10.2013 and repudiated that the claim of the complainant on frivolous ground which amounted to deficiency in services on their part. Hence the complaint before the District Forum seeking following directions against the OPs:-
(i) to pay Rs. 1,22,737/- spent on the treatment along with interest @12%.
(ii) to pay a sum of Rs. 1 lac as compensation for mental tension and harassment.
(iii) to pay Rs.10,000/- as litigation costs. (iv to pay 50,000 as compensation.
3. Complaint was contested by the OPs who filed written reply, and pleaded that the claim of the complainant was repudiated on the ground that the cost of the spectacles and contact lenses, hearing aids are not payable under F.A. No. 878 of 2014 4 exclusion clause 4.4 of the policy. The complainant was suffering from MYOPIA which can be treated in following ways:-
a. By wearing Spectacles b. By wearing external Contact Lenses c. By surgically implanting the Contact Lenses.
The complainant had under gone Implantable Contact Lenses, which is also known as IMPLANTABLE COLLAMER LENSES. These are known as Collamer Lenses because they are made of material called Collamer and they are implanted inside the eye by a surgical procedure. There was no deficiency on their services and they prayed for dismissal of the complaint with costs.
4. District Forum allowed the parties to lead their evidence in support of their averments.
5. In support of her allegations, the complainant had tendered into evidence his affidavit Ex.CW1 & affidavit Dr. G.S. Dhami, M.B.B.S, M.D Ex.CW2 along with documents Ex.C1 to Ex.C19 and closed their evidence. On the other hand OPs tendered into evidence affidavit of Mr. R.S. Arora as Ex.R/A along with documents Ex.R/1 to Ex.R/4 and close their evidence.
6. After going through the allegations alleged in the complaint, written reply filed by the OPs, evidence and documents brought on the record, the learned District Forum allowed the complaint as referred above. 7 We have heard the learned counsel for both the sides have carefully gone through the record of the case.
8. OPs alleged in the grounds of appeal that the case of the complainant falls under clause 4.3 it was specifically mentioned that OP was not liable to pay any expenses which were incurred in connection with or in respect of correction of eye sight. On the basis of medical report the claim was rightly repudiated by OPs.
The District Forum ignored the above said exclusion clause and allowed the complaint merely on the ground that clause 4.4 of the policy conditions F.A. No. 878 of 2014 5 excludes expenses towards contact lenses only and does not exclude expenses incurred on treatment of Myopia.
9. It was also alleged by complainant that the OP took the plea for the first time in the ground of appeal that the case of the complainant falls under 4.3 of the policy. On the other hand counsel for the appellant argued that appellants can rely upon the terms and conditions of the policy even if no objection regarding that clause was not taken earlier by them. Clause 4.3 of the policy reads as under:-
4.3 a. Circumcision unless necessary for treatment of a disease not excluded hereunder or as may be necessitated due to an accident.
b. Vaccination and inoculation
c. Change of life or cosmetic or aesthetic treatment of any
description such as correction of eyesight etc.
d. Plastic surgery other than as may be necessitated due to an
accident or as a part of any illness.
10. The plea of the OPs is that the treatment of ICL is of cosmetic or aesthetic treatment. However, to rebut it complainant has proved on record affidavit of Dr. G.S.Dhami as Ex.CW2, in which he deposed that complainant was admitted in hospital on 22.06.2013. ICL (Implantable Collamer lenses) surgery of his both the eyes was done by him and complainant was discharged on 23.06.2013. He further deposed that implantable Collamer lenses is not a contact lenses, implantable Collamer lenses are implantable surgically in the eyes of those patients whose eyesight has been weekend due to very high Myopia and they are unable to look properly and at that time these lenses are surgically implanted inside the eyes just behind the Iris in front of the eyes natural lenses and without implantation of these lenses, the eye sight of the patient cannot be increased. Complainant also produced literature regarding ICL as Ex.C19 where it was mentioned that these lenses are different from contact lenses. F.A. No. 878 of 2014 6
11. Complainant got implanted the Collamer lenses for treating his disease i.e. Myopia and not for cosmetic or aesthetic treatment. The OPs themselves produced on record, literature as Ex.R-2. In which it was specifically mentioned that "Implantable lenses" help for severe myopia. Therefore, the case of the complainant does not falls under exclusion clause 4.3 of the policy. The District Forum rightly held that OPs are liable to pay the claim amount to the complainant. In view of the above discussion, we hold that the order of the District Forum is justified and upheld. No merit in the appeal same is hereby dismissed.
12. The appellants/OPs had deposited an amount of Rs.25,000/-+ 40,000/- with this Commission at the time of filing the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the complainant/respondent No.1 by way of a crossed cheque/demand draft after the expiry of 45 days, from the dispatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
13. Arguments in this appeal were heard on 05.08.2015 and the order was reserved. Now the order be communicated to the parties.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(GURCHARANSINGHSARAN) PresidingJudicial Member (JASBIR SINGH GILL) Member (SURINDER PAL KAUR) August 17, 2015 Member SK F.A. No. 878 of 2014 7