National Consumer Disputes Redressal
New India Assurance Co. Ltd. vs Dr. Girish M. Wagher on 31 January, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 135 OF 2011 (Against the Order dated 30/11/2010 in Complaint No. 265/2001 of the State Commission Gujarat) 1. NEW INDIA ASSURANCE CO. LTD. Jeevan Bharti Building, Tower-II,level-v,124,connaught Place, New Delhi-110001 ...........Appellant(s) Versus 1. DR. GIRISH M. WAGHER R/o,B/4,Aarohi Flats,Bh.New york Trading centre,Thaltej,Ahmedabad. ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR,MEMBER For the Appellant : DR. SUSHIL KUMAR GUPTA For the Respondent : Ex parte Dated : 31 Jan 2017 ORDER This appeal is directed against the order of the State Commission Gujarat dated 30.11.2010 vide which the State Commission allowed the complaint preferred by the respondent complainant and directed the appellant insurance company to pay to the complainant a sum of Rs.5,00,000/- within three months.
2. Briefly put, the facts relevant for the disposal of the revision petition are that complainant admittedly took a medical insurance policy valid for a period of one year w.e.f. 17.06.2000 to 16.06.2001. The sum insured was Rs.5,00,000/-. According to the respondent complainant he had been suffering from unbearable stomache ache for which he consulted several doctors as also surgeon of Lilawati hospital. On the medical advice, the complainant got admitted in Shree Ortho Surgical Clinic on 20.07.2000 and discharged on 21.07.2000. During the admission period, several diagnostic tests were conducted and complainant was having right Iliac Abscess. The complainant was thus prescribed medicine for tuberculosis and he took domiciliary treatment at home. The respondent complainant filed insurance claim for reimbursement of expenses incurred for tests conducted during hospitalization from 20.07.2000 to 21.07.2000. The medical claim was repudiated by the insurance company on the plea that as per clause 4.10 of the insurance contract, the claim of the complainant was not payable. Being aggrieved of the repudiation of claim, the respondent filed consumer complaint.
3. The opposite party on being served with the notice of the complaint justified repudiation of claim submitted by the complainant on the plea that complainant was investigated at Lilavati Hospital, Bombay on 05.07.2000. He was investigated for Typhoid amongst other investigative suggestive of fever and weight loss. Thereafter, sonography was carried out on 10.07.2000, which showed a mass of 3.5 to 4.0" in all dimensions. It is submitted that C T Scan was carried out on 12.7.2000 which confirmed the presence of the mass and he was advised FNAC. He was advised Barrium Mill and C T Guided Aspiration. This was carried out on 20.7.2000 and were suggestive of T.B. treatment which was subsequently started on 21.7.2000 but present complainant was hospitalized only on 20.7.2000 for the purpose of investigation only and no treatment was given on that date and therefore, present complainant cannot be considered for the payment of his mediclaim. It was also pleaded that claim file was referred to Panel Doctor Kiran Vadaliya, M.S., FCPC, FIAMS, LLB who opined as under:
1. The place of hospitalization and the place where the procedure has been carried out are different and probably far from each other. There is no justification for hospitalizing injured at such a large distance. Claim cannot be considered further until this point is clarified.
2. Even after the clarification made by the complainant, file was again referred to Dr. Kiran Vadaliya and Dr. Kiran Vadaliya has again gave the opinion that complainant was kept under observation for a period of one day in the nursing home and discharged on the same day. Dr. Vadaliya has further opined that complainant was hospitalized only for the purpose of observation and not for treatment of any disease. Dr. Kiran Vadaliya has specifically stated in his further opinion dated 22.10.2001 that complainant was not given any treatment during this period of hospitalization and, therefore, claim cannot be considered.
4. The opposite party thus prayed for dismissal of the complaint.
5. The State Commission on consideration of the pleadings of the parties and evidence allowed the complaint and directed the opposite party as under:
1. The present complaint is admittedly granted.
2. Order is passed that respondent will pay to complainant amount of totally Rs.5,00,000/- from the date of this order within three months.
6. The petitioner being aggrieved of the order of the State Commission has preferred the instant appeal. Notice of appeal was issued. Respondent complainant despite of service of notice of appeal failed to put in appearance. He was, therefore, proceeded ex parte vide proceedings dated 17.08.2016.
7. Dr. Sushil Kumar Gupta, Advocate appearing for the appellant has submitted that order of the State Commission is not sustainable because it has been passed in utter disregard of Exclusion Clause 4.10. of the insurance contract which excludes the charges incurred at the hospital or nursing home primarily for diagnostic not consistent with or incidental to the diagnosis and treatment of positive existence or presence of any ailment or sickness or injury for which confinement is required at hospital / nursing home. It is argued that during the hospital stay of the complainant, it was concluded that there was right Iliac abscess in the abdomen of the complainant suggestive of tuberculosis for which no treatment was taken by the complainant as inpatient in the nursing home / hospital nor treatment for tuberculosis require such confinement. Thus, in view of clause 4.10 of the insurance contract, repudiation is justified.
8. In order to appreciate the contention of learned counsel for the appellant, it would be useful to have a look on Exclusion Clause 4.10 of the insurance contract which reads as under:
"Charges incurred at hospital or nursing home primarily for diagnostic, x-ray or laboratory examinations not consistent with or incidental to the diagnosis and treatment of the positive existence or presence of any ailment, sickness or injury, for which confinement is required at hospital / nursing home."
9. On reading of the above, it is clear that charges incurred by insured at hospital / nursing home primary for diagnostic, x-ray or laboratory examination are excluded from insurance cover unless diagnostic, x-ray or laboratory examination is consistent with or incidental to the diagnosis and treatment of the positive existence or presence of any ailment, sickness or injury for which confinement is required at the hospital / nursing home. Admittedly, in this case, the complainant during the admission period at the hospital underwent diagnostic examination and as per the test conducted, which revealed that the complainant was having right Iliac abscess suggestive of tuberculosis. It is also clear from the record that after the diagnostic test, complainant was discharged from the hospital and he was not given any treatment for tuberculosis during his stay at the hospital nor his confinement at the hospital for treatment of tuberculosis was required. Therefore, we tend to agree with submission of learned counsel for the appellant and hold that impugned order of the State Commission is not sustainable as it has been passed in utter disregard of clause 4.10 of the insurance contract.
10. In view of the discussion above, we allow the appeal, set aside the impugned order and dismiss the complaint.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... ANUP K THAKUR MEMBER