State Consumer Disputes Redressal Commission
The New India Assurance Company Ltd. vs Sippan Jain And Another on 16 March, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1334 of 2013
Date of institution : 05.12.2013
Date of decision : 16.03.2015
The New India Assurance Company Limited, 36, Gobind Niwas, G.T.
Road, Jalandhar, through its Divisional Manager, now through Sh.
A.L. Madan, Manager, New India Assurance Company Limited,
Regional Office SCO 36-37, Sector 17-A, Chandigarh.
.......Appellant/Opposite Party No.2
Versus
1. Sippan Jain S/o Janesh Jain, R/o 204, Shakti Nagar, Jalandhar
City.
....Resondent/Complainant
2. Raksha TPA Pvt. Ltd., Branch Office (360901) City B.M.C.
Chowk, Lally Building, G.T. Road, Jalandhar, through its
Authorized Signatory.
...Respondent/Opposite Party No.1
First Appeal against the order dated
15.10.2013 of the District Consumer
Disputes Redressal Forum, Jalandhar.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Baldev Singh Sekhon, Member
Mrs. Surinder Pal Kaur, Member Present:-
For the appellant : Shri Rahul Sharma, Advocate For respondent No.1 : Sh. Munish Goel, Advocate For respondent No.2 : Ex parte JUSTICE GURDEV SINGH, PRESIDENT :
This appeal by the appellant/opposite party No.2 is directed against the order dated 15.10.2013 passed by District Consumer Disputes Redressal Forum, Jalandhar (in short, "District First Appeal No.1334 of 2013 2 Forum"), vide which the complaint filed by Sippan Jain, respondent No.1/complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), was allowed and this opposite party was directed to pay Rs.74,000/- to him, along with interest at the rate of 9% per annum from the date of repudiation of his claim till the date of payment and Rs.2,000/-, on account of litigation expenses.
2. The complainant alleged, in his complaint, that he purchased one Mediclaim policy from the opposite parties, which was for the period 13.08.2012 to 12.08.2013. He developed problem with his eyes and the same was regarding the diminution of vision in both the eyes. On examination, it was found that his UCVA was 6/36 in both the eyes and BCVA was 6/6 in right eye with 2.00/DSPH/2.00/DCY1 90/axis and 6/6 in his left eye with minus 1.75/DSPH-1.50/DCY 1 100/axis. However, his interior and posterior segment and intra ocular pressure was within normal limits. He was diagnosed as a case of Myopia with Astigmatism in both the eyes, for which he had to undergo i-lasik (lasik with intralase method) with costume Vue in both the eyes. That treatment was given to him on 13.09.2012 in Thind Eye Hospital, Jalandhar; where he remained admitted upto 14.09.2012 and was discharged on that date. He spent Rs.74,000/- on that treatment and made a claim under the policy to the opposite parties; which was repudiated, vide letter dated 09.10.2012 with the remarks "patient suffered from High Myopia and underwent Lasik treatment (Correction of eyesight). Correction of eyesight is a Cosmetic/Aesthetic procedure. Therefore, claim is non payable as per Clause 4.4.2. High Myopia both eyes claim is non First Appeal No.1334 of 2013 3 payable". The rejection of his claim is arbitrary and illegal and against the provisions of the Act. The same amounts to deficiency in service and unfair trade practice; as a result of which, he suffered inconvenience, mental tension, agony and financial loss. He is entitled to Rs.1,00,000/-, as damages and litigation expenses; besides the reimbursement of Rs.74,000/-, along with interest at the rate of 18% per annum from the date of payment of the bill till the final payment of that amount. He prayed for the issuance of directions accordingly to the opposite parties.
3. The complaint was contested by the opposite parties, who filed joint written reply before the District Forum. In the written reply, they did not dispute that the complainant had purchased the policy, as mentioned in the complaint, from opposite party No.2 for the period mentioned therein. They admitted that the claim, regarding the treatment, as mentioned in the complaint, was submitted by the complainant, which was repudiated, vide letter dated 09.10.2012. While denying the other allegations made in the complaint, they pleaded that the complainant was having Myopia (short sightedness) prior to the inception of the policy, as the same is of gradual descent and not acute or sudden in nature. The same cannot develop during the period of 30 days. The going for i-Lasik surgery is cosmetic/aesthetic procedure and is excluded, by virtue of Exclusion Clause 4.4.2 of the policy. That procedure was adopted by the complainant for correction of the eyesight, just to get rid of the wearing of the glasses or the contact lenses for his own comfort. The claim was not payable, by virtue of the said exclusion clause and, as First Appeal No.1334 of 2013 4 such, the same was rightly repudiated. There was neither any deficiency in service nor unfair trade practice on their part and, as such, the complainant is not entitled to any such compensation, litigation costs or reimbursement of the amount spent on the said treatment.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide aforesaid order.
5. We have heard the learned counsel for both the sides and have also carefully gone through the records of the case.
6. It was submitted by the learned counsel for the appellant/opposite party No.2 that the treatment, for which the complainant had gone for the correction of the eyesight, was a cosmetic/aesthetic treatment and such a treatment is specifically excluded, by virtue of clause 4.4.2 of the insurance policy itself. Therefore, his claim was rightly repudiated and the finding recorded by the District Forum, to the contrary, is bound to be set aside.
7. On the other hand, it was submitted by the learned counsel for the complainant that the District Forum came to the correct conclusion that the treatment, so obtained by the complainant for his eyesight, was not a cosmetic treatment and his claim was covered under the insurance policy and, as such, the opposite parties were not justified in repudiating his claim. No such evidence has been produced by the opposite parties, on the basis of which such treatment can be termed as cosmetic treatment. He First Appeal No.1334 of 2013 5 relied upon the judgment of the Andhra Pradesh State Consumer Disputes Redressal Commission, rendered in First Appeal No.05 of 2012, decided on 22.05.2013 (Chittithoti Subharatnam Vs. The General Manager, Telecom District, Ongole Town, Prakasam District & Others).
8. The letter of repudiation dated 09.10.2012 was proved on the record, as Ex.O-3. Relevant portion thereof is reproduced below:-
"PATIENT SUFFERED FROM HIGH MYOPIA AND UNDERWENT LASIK TREATMENT (CORRECTION OF EYESIGHT). CORRECTION OF EYESIGHT IS A COSMETIC/ AESTHETIC PROCEDURE. THEREFORE, CLAIM IS NON PAYABLE AS PER CLAUSE 4.4.2."
9. Both the sides are relying upon the insurance policy Ex.C-4 and the terms and conditions Ex.O-2. The opposite parties invoked clause 4.4.2 for repudiating the claim of the complainant. That clause is under the heading "Permanent Exclusions" and is reproduced below:-
"Any medical expenses incurred for or arising out of:
Circumcision, cosmetic or aesthetic treatment, plastic surgery unless required to treat any injury or illness."
10. The question arises, whether the treatment obtained by the complainant was cosmetic treatment or treatment for some illness/ailment? For deciding that question, the most important First Appeal No.1334 of 2013 6 document is the Discharge Summary itself, to which the reference was made by the counsel for opposite party No.2 himself at the time of arguments. It is mentioned in that Discharge Summary that the hospital, from which the complainant obtained the treatment, was having fully equipped operation theatre for all kinds of Micro- Surgeries with qualified doctors and nursing staff and more than twenty beds facility. It was also certified therein that the laser correction performed was required for therapeutic purposes to enable the patient to maintain his normal visual acuity and not for cosmetic reasons. The opposite parties did not produce any evidence to rebut that certificate of the doctor, incorporated in the Discharge Summary. They merely relied upon the repudiation letter itself and the affidavit of Prabh Dass, Manager Ex.O-A. That affidavit is no affidavit in the eyes of law, as it is only the written reply which has been the given the form of an affidavit and the deponent did not depose about particular facts. Moreover, that Manager is not a medical expert and could not have given any such opinion; as to whether the treatment, so obtained by the complainant, was cosmetic treatment or not. Thus, the T.P.A. has not recorded any reason, while terming the treatment as cosmetic/aesthetic procedure.
11. Similar matter came up before the Andhra Pradesh State Commission in the above referred judgment. In that case also, the daughter of the complainant had undergone Lasik Surgery for compound Myopic Astigmatism of both the eyes. That State Commission observed in the order as under:-
First Appeal No.1334 of 2013 7
"As per medical literature, in a LASIK procedure, a laser is used to reshape your cornea -- the clear, round dome at the front of your eye -- to improve the way your eye focuses light rays onto your retina. LASIK is shorthand for laser-assisted in situ keratomileusis. LASIK or Lasik (Laser-Assisted in situ Keratomileusis), commonly referred to as laser eye surgery, is a type of refractive surgery for the correction of myopia, hyperopia, and astigmatism. The LASIK surgery is performed by an ophthalmologist who uses a laser or microkeratome to reshape the eye's cornea in order to improve visual acuity. For most patients, LASIK provides a permanent alternative to eyeglasses or contact lenses.[2] Major side effects include halos, starbursts, night-driving problems, keratoconus (corneal ectasia), and eye dryness. LASIK is most similar to another surgical corrective procedure, photorefractive keratectomy (PRK), and both represent advances over radial keratotomy in the surgical treatment of refractive errors of vision. For patients with moderate to high myopia or thin corneas which cannot be treated with LASIK and PRK, the phakic intraocular lens is an alternative. In the case on hand, there is no dependable evidence from the side of Ops that the said Lasik surgery which was being conducted with the assistance of laser can be treated as cosmetic surgery. The said surgery proceedings were undertaken to correct the inherent defect in the eye sight with First Appeal No.1334 of 2013 8 the assistance of laser and hence it cannot be treated as cosmetic surgery. Therefore, the refusal of reimbursement is not justified. Hence in the circumstances of the case the appeal is liable to be allowed, allowing the complaint for reimbursement of the medical expenses."
In the present case, the facts are totally similar. As already said above, no evidence has been produced by the opposite parties for rebutting the certificate of the doctor, as given in the Discharge Summary. The medical literature, so reproduced in this judgment, fully supports the case of the complainant. By no stretch of imagination, it can be said that the treatment obtained by the complainant for Myopic Astigmatism was cosmetic treatment. It was a treatment given for correcting the eyesight and other ailment. The same is covered under the insurance policy. The opposite parties were not justified in repudiating the claim of the complainant on the said ground and their act, in repudiating the same, amounts to deficiency in service. Correct findings to that effect were recorded by the District Forum and the same are hereby upheld.
12. We conclude that there is no merit in this appeal and the same is hereby dismissed.
13. The appellant had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It deposited another sum of Rs.21,835/- on 23.01.2014, in compliance of the order dated 16.12.2013 passed by this Commission. Both these sums, along with interest which has accrued thereon, if any, shall be remitted by the registry to respondent No.1/complainant by way of a crossed cheque/demand First Appeal No.1334 of 2013 9 draft after the expiry of 45 days of the sending of certified copy of the order to them.
14. The arguments in this case were heard on 13.03.2015 and the order was reserved. Now, the order be communicated to the parties.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (SURINDER PAL KAUR) March 16, 2015 MEMBER (Gurmeet S)