State Consumer Disputes Redressal Commission
Royal Sundaram Allianz Insu. Co. Ltd. vs Suchi Sethi on 8 March, 2017
Daily Order IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision:08.03.2017 First Appeal- 249/2013 (Arising out of the order dated 31.01.2013 passed in Complainant Case No. 1420/2009 by the District Consumer Disputes Redressal Forum (VI), Vikas Bhawan, New Delhi) Royal Sundaram Alliance Insurance Co. Ltd., Legal & TP Department, Subramaniam Building, Second Floor, No.1-Club House Road, Chennai-600 002. ....Appellant Versus Suchi Sethi, S/o Shri Suresh Kumar Sethi, 449, Kailash Tower-II, East of Kailash, Delhi-110065. ....Respondent CORAM Justice Veena Birbal, President 1.
Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
Justice Veena Birbal, President Aggrieved by the order dated 31.1.13 passed by the Consumer Disputes Redressal Forum (VI), Vikas Bhawan, New Delhi in CC No.1420/2009, the appellant has filed the present appeal.
A complaint under Section 12 of the Act was filed by the respondent herein i.e. complainant before the District Forum stating therein that her father had taken a Health Shield Insurance Policy bearing No.HO00003724000104-W101 from appellant/OP for himself, his wife, son and for the respondent/complainant for a sum insured of Rs.5,00,000/- each with Rs. 2,50,000/- as cumulative bonus. It was alleged that only computer printed schedule was sent to the respondent/complainant and no terms and conditions were found annexed with the said schedule nor the same were ever supplied to the respondent/complainant or her father. The respondent/complainant used to have headache, watering of eyes, pain and irritating problem in her eyes. For the said problem, she went at M/s Shroff Eye Centre, A-9, Kailash Colony, New Delhi on 29.5.08 where it was diagnosed that she was having Myopia with astigmatism and the attending doctor advised to undergo lasic surgery. The claim was reported with the appellant's/OP's office by her father. The appellant/OP did not make advance payment and asked the respondent/complainant to complete the formalities. The requisite surgery was done on 20.6.08 and the hospital charged Rs.36,641/-. The claim form and requisite bills were sent to the appellant/OP. However, the claim was not settled and repudiated on the ground that lasik surgery was a cosmetic surgery and was excluded under the terms of the policy. Thereupon the respondent/complainant filed a complaint before District Forum for claiming a sum of Rs.36,641/- spent on the surgery with 24% interest from the date of loss along with Rs.20,000/- towards mental agony and litigation cost.
The claim was contested by filing reply wherein it was admitted that the father of the complainant had taken the insurance policy as had been stated in the complaint case wherein the respondent/complainant was also covered. The policy was taken in the year 2007 and it was a fourth year of the renewal of the policy. It was alleged that respondent/complainant had wrongly stated that the terms and conditions were not supplied. It was alleged that the respondent/complainant had undergone lasik surgery which was a cosmetic surgery and all expenses pertaining to cosmetic surgery were excluded under clause 21 of the terms and conditions of the policy as such the claim was not payable as per terms and conditions of the policy.
Rejoinder was filed by the respondent/complainant wherein the averments of complaint were reiterated.
Both the parties filed evidence in the form of affidavits. After hearing the parties, Ld. District Forum held that medical treatment of correct of vision by lasik was technological advancement. It was a non-invasive surgery. Ld. District Forum also held that appellant/OP had simply misdirected itself only with an interest to defeat the small claim in an arbitrary way. It was also held that policy was not brought to the notice of respondent/complainant which was unfair trade practice. Accordingly, appellant/OP was held guilty of deficiency in service and unfair trade practice. Ld. District Forum directed the appellant/OP to pay Rs.36,641/- with interest @ 9% and awarded Rs.40,000/- for mental agony and unfair trade practice.
Aggrieved with the aforesaid order, present appeal is filed.
We heard Counsel for the parties and perused the record of the case carefully.
Ld. Counsel for the appellant/OP has contended that the lasik surgery is a cosmetic surgery. It is contended that cosmetic surgery is specifically excluded in the terms and conditions of the policy, as such there was no deficiency in service on its part. It is contended that Ld. District Forum has wrongly held that the claim has been repudiated in an arbitrary manner. It is contended that the policy represents a contract between the parties and the respondent/complainant cannot claim more than that what is provided under the terms and conditions of the policy. It is contended that the respondent/complainant was availing fourth year renewal of policy and after availing the policy for 5 years, the respondent/complainant cannot contend that the terms and conditions were not supplied to her.
On the other hand, Ld. Counsel for the respondent/complainant has contended that impugned order is legal and valid and Ld. District Forum has considered the entire material on record. It is contended that respondent/complainant was only provided with a computerized schedule of policy consisting of one page without any terms and conditions of the policy. It is further contended that Laser surgery is not a cosmetic surgery. The treatment was taken for correction of vision and other ailment. The same is covered under the policy. It is contended that appellant/OP was not justified in repudiating the claim of respondent/complainant on the said ground and their act, in repudiating the same, amounts to deficiency in service. It is contended that Ld. District Forum has recorded correct findings.
The appellant/OP has invoked clause No.21 for repudiating the claim for Lasik surgery. The said clause is under the heading "EXCLUSIONS" and is reproduced as under:
"Any cosmetic, plastic surgery, aesthetic or related treatment of any description, including any complication arising from these treatments, whether or not for psychological reasons......"
The appellant/OP has relied upon opinion of panel of doctors of TPA in repudiating the claim. The said opinion is as under:
"As per doctor's opinion of our panel of doctors the member had high myopia and underwent for Lasik treatment. As Lasik Surgery is a cosmetic surgery hence the claim is not admissible and not payable."
However, no medical literature is placed on record in support of the stand that Lasik surgery is a cosmetic surgery. The opinion of the panel of doctors of TPA is a self serving opinion and cannot be taken to reject the claim in the absence of any other supporting material on record. Further the panel of doctors has not given any reasons as to how Lasik surgery is a cosmetic surgery.
The respondent/complainant has categorically stated in the affidavit that she was having history of watering of eyes, pain and some irritating problem in her eyes and to get the same treated, she visited M/s Shroff Eye Centre, A-9, Kailash Colony, New Delhi on 29.5.08 wherein after check up, the problem was diagnosed as Myopia with astigmatism in the Giant Paillary Conjunctivitis etc. and the attending doctors advised her to undergo Lasik surgery. After conducting the requisite tests, the Lasik surgery was done. There are documents on record of M/s. Shroff Eye Centre showing Lasik surgery undergone by respondent/complainant. The symptoms for which the respondent/complainant was admitted are also stated in the medical certificate given by the attending physician. The receipt of the payment is also annexed. A certificate is also given by the attending doctor of Shroff Eye Centre wherein it is certified as under:
"This is to certify that Ms. Suchi Sethi (SEC.No.98965 is under our care. She was first seen here on 29th May 2008 due to discomfort and intolerance to contact lenses. As her refractive error is significant, she cannot perform routine activities without it. Hence she was advised to undergo LASIK surgery in both eyes for the correction of myopia and astigmatism, which she underwent on 20th June 2008."
Similar matter came up before the Andhra Pradesh State Consumer Disputes Redressal Commission in case of Chittithoti Subharatnam vs The General Manager, Telecom District, Ongole Town, Prakasam District & Others in First Appeal No.05 of 2012, decided on 22.05.2013. In that case also, the daughter of the complainant therein had undergone Lasik Surgery for compound Myopic Astigmatism of both the eyes. The claim of medical reimbursement was denied by OP on the ground that Lasik Surgery was a cosmetic surgery. The Andhra Pradesh State Commission held that surgery undertaken to correct inherent defect in the eyesight with the help of Laser cannot be treated as cosmetic surgery. The relevant portion of the judgement is reproduced as under:
"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. 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 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 similar facts and circumstances in United India Insurance...vs K.P. Desai, FA No.A/04/843, decided on 31.3.13 by SCDRC, Maharashtra, Mumbai, the contention of insurance company that lasik therapy carried out on the eyes of complainant therein was not covered under the terms and conditions of policy being a cosmetic surgery has been rejected and claim for reimbursement of medical expenses is allowed.
In the present case, facts are also similar. As noted above, no material is provided by the appellant/OP for rebutting the certificate issued by the attending doctor of Shroff Eye Centre wherein it is certified that surgery was done for correction of myopia and astigmatism. No medical literature is also produce to substantiate that the treatment taken by the respondent/complainant can be said to be a cosmetic treatment as has been alleged. The respondent/complainant was given treatment for correcting the eyesight. In these circumstances, appellant/OP was not justified in repudiating the claim. There is deficiency in service on the part of appellant/OP in repudiating the claim. The Ld. District Forum has rightly allowed the complaint. There is no merit in this appeal. Appeal stands dismissed.
A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. The record of the District Forum be sent back forthwith. Thereafter, the file be consigned to Record Room.
(Justice Veena Birbal) President