State Consumer Disputes Redressal Commission
United India Ins. Co. Ltd vs Purshottamdas V Maganani on 10 October, 2022
Details DD MM YY
Date of Judgment 10 10 2022
Date of filing 18 08 2022
Duration 23 01 -
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE, AHMEDABAD.
First Appeal No.513/2022
Court No. 1
1. The United India Insurance Company Ltd.,
Through it's authorized signatory,
2nd floor, Kalindi, Jain Society, Godhara. ...Appellant
Vs
1. Parshottamdas V. Magnani, Adult,
Residing at M/s Virumal Chelara,
Dr. Gidwani Road, Godhara. ...Respondent
Coram : Hon'ble Mr. Justice V. P. Patel, President
Hon'ble Ms.A.C.Raval, Member
Hon'ble Mr.R.N.Mehta, Member Apperance : Mr. M.J.Shelat for the appellant Order by Hon'ble Mr. R.N.Mehta
1. This appeal is directed against the order dated 16 July 2022 of District Commission Godhara in Consumer Complaint No.43/2020. The District Commission allowed the complaint in part and ordered opponent United India Insurance Company Ltd. to pay the sum of Rs.2,10,000/- together with interest @ 6% per annum from the date of complaint till realization and also further awarded Rs.2000 for harassment, mental agony and the cost of this complaint.
2. Being aggrieved by the aforesaid order Insurance Company has preferred this appeal to submit that the order is contrary to the Terms and Condition of the contract of Insurance. It is also further submitted that the Learned District Commission has wrongly awarded the aforesaid amount despite the fact, that the stem cell surgery falls within the exclusion clause of the policy. It is also further submitted that District Commission has also awarded more amount than the entitlement of insured under policy therfore present appeal is requires to be admitted.
DABHI A-513-2022 Page 1 of 43. We have heard Mr. M.J.Shelat advocate for the appellant Insurance Company. He submits that the insured had undergone surgery through Autologous Adult stem cell which is excluded in clause No.4.17 of the policy. Therefore the Insurance Company ought not to have made liable for the amount of treatment which was excluded under the policy. Mr. Shelat has drawn our attention to Page No.5 of the compilation where the District Commission has referred the replied filed by the Insurance Company. The reason given for repudiation, vide latter dated 03.02.2020 is reproduced in the order itself, which reads as under;
"AS PER CLAIM FILE AND DOCUMENTS PROVIDED BY YOU. WE OBSERVED THAT PATIENT IS ADMITTED FOR OA BOTH KNEE JOINTS FOR WHICH HE HAS UNDERGONE AUTOLOGUS STEM CELL TRANSPLANTATION. HENCE THE CLAIM IS NOT PAYABLE AS PER TERMS & CONDITION OF POLICY AS PER CLAUSE 4.17 (GENETIC DISORFERS AND STEM CELL IMPLANTATION / SURGERT NOT PAYABLE SO THIS CLAIM IS NOT ADMISSIBLE, HENCE DENIED"
4. Mr. M.J.Shelat submits that it is not in dispute that insured had undergone knee placement treatment at Jio Star USA Institute of Regenerative Medicine and both the knee of insured were operated upon. The insured incurred the expenses of Rs.2,10,000/- and copy of the bills produced at Page No.37 of the compilation. Referring the said bill Mr. Shelat, than taken us to the discharge summary issued by the hospital which is at Page No.34. In the said discharge summary treatment given is explained in following words;
"Pathological work was done on the day of admission. Stem cells were collected from mini liposuction and were processed in the laboratory. Stem cell transplant done under aseptic condition under observation of vital parameters. Transplantation was done Intra articular in both knee joints."
5. According to him, when it is admitted position, the District Commission ought not to have awarded the amount to the complainant. We are not in agreement with the submission because the said clause excludes stem cells surgery if it is intended to cure genetic disorder. However, knee replacement surgery or say O.A. cannot be said to cure any genetic disorder. It is possible that while doing this, the said procedure might have used stem cell procedure, but merely because stem cells involved, it cannot be said it is excluded in policy. There is a reason behind it, facility of Insurance is for "uncertainty" and where there is a confirmed genetic disorder, DABHI A-513-2022 Page 2 of 4 obviously it would not cover under the policy. Meaning there by, if it is genetic disorder certainly it would not covered under the Insurance Policy but by no stretch of imagination "knee surgery" can be said genetic disorder/curative surgery and therefore we don't see any reason to held otherwise.
6. The next submission, which Mr. Shelat has made, is even if the insured is presumed to have entitle for the amount even than the maximum of 25% of sum insured or actual loss whichever is less can be paid under the policy condition;
"b. Actual expenses incurred or 25% of the sum insured whichever is less"
7. Again, we are not satisfied with the submission canvassed by Mr. Shelat. We have perused the copy of written statement filed before the District Commission (the copy of which it is produced at Page No.38.) In the entire written statement, there is no pleading with regard to this condition. When the contention was neither pleaded nor raised before the District Commission, obviously the District Commission might not have given findings on the said issue. Mr. Shelat, at this point of time submits that the appeal is continuous proceedings of the original proceedings. It can be looked into afresh even at appeal stage. We have perused the policy copy produced on record by the appellant. On verification it is found, policy is in the name of Parshottamdas V. Magnani. The sum insured is mentioned Rs.5,00,000/- and plan selected is mentioned as "Gold". In clause 1.2.1 which is applicable in the facts of this case is reads as under;
1.2.1(Applicable only for Gold Plan & Senior Citizen Plan):
"Expenses in respect of the following specified illnesses will be restricted as detailed below:
Hospitalization Limits per surgery Restricted To Benefits i. Cataract Actual expenses incurred or 25% of the a. sum insured whichever is less, subject to a maximum of Rs.40,000. per eye.
ii. Hernia Actual expenses incurred or 25% of the sum insured whichever is less, subject to a maximum of Rs.1,00,000.
iii. Hysterectomy Actual expenses incurred or 25% of the sum insured whichever is less, subject to a maximum of Rs.1,00,000.
b. Major surgeries b. Actual expenses incurred or 70% of the sum insured whichever is less DABHI A-513-2022 Page 3 of 4 *Major surgeries include cardiac surgeries, brain tumour surgeries, pace maker implantation for sick sinus syndrome, cancer surgeries, hip, knee, joint replacement surgery, Organ transplant"
8. From the above, it is as clear as day light that the insured is entitled upto 70% of the sum insured. The complainant is entitled to have full indemnification becuase 70% of the insured amount (Rs.5,00,000/-) comes to Rs.3,50,000/- whereas the insured has incurred expenses of Rs.2,10,000/- Thus, the decision of the District Commission to award Rs.2,10,000/-cannot be interfered with.
9. Mr. Shelat submits that the policy referred by the District Commission is reproduced at Page No.11 suggest only 25% of the sum insured. We are also surprised to read this how there can be two different terms of a same insured. The copy produced on record before this commission, is a certified copy. Therefore we cannot go beyond the other source. Even otherwise also, when there are ambiguities as to coverage in the policy, it is well established principle that it always goes in favor of the insured. Therefore we have no hesitation in holding that the order of the District Commission is just and proper and it cannot be said erroneous from any angle. Hence we pass following order.
ORDER A. The Appeal No.513 of 2022 is hereby dismissed at the admission stage.
B. The order dated 16.07.2022, passed by the Consumer Disputed Redressal Commission, Panchmahal @ Godhra in Consumer Complaint No. 2020/43 is hereby confirmed.
C. There shall be no order as to cost.
D. Registry is directed to send certified copy of this judgment to the parties. Registry is also directed to send copy of this judgment to the District Commission Panchmahal @ Godhra through E-mail in PDF format for taking necessary action.
Pronounce in open court today on _________.
[Mr. R.N. Mehta] [Ms. A. C. Raval] [Hon'ble Justice V.P. Patel]
Member Member President
DABHI A-513-2022 Page 4 of 4