State Consumer Disputes Redressal Commission
National Insurance Company Limited vs Mahesh Pant And Another on 5 March, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 134 / 2012
National Insurance Company Limited
through its Divisional Manager
65-A, Rajpur Road
Dehradun
......Appellant / Opposite Party No. 1
Versus
1. Sh. Mahesh Pant S/o Sh. M.C. Pant
R/o 189-E, Garhi Cantt.
Dehradun
......Respondent No. 1 / Complainant
2. Vipul MedCorp TPA Private Limited
through its Manager
Raj Plaza, Rajpur Road
Dehradun
......Respondent No. 2 / Opposite Party No. 2
Sh. Deepak Ahluwalia, Learned Counsel for the Appellant
Sh. K.K. Chaturvedi, Learned Counsel for Respondent No. 1
None for Respondent No. 2
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Mrs. Kusum Lata Sharma, Member
Dated: 05/03/2013
ORDER
(Per: Justice B.C. Kandpal, President):
This is insurer's appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 13.08.2012 passed by the District Forum, Dehradun in consumer complaint No. 14 of 2012. By the order impugned, the District Forum has allowed the consumer complaint against the opposite parties and directed them to pay sum of Rs. 1,39,398/- to the complainant and Rs. 5,000/- towards litigation expenses. The District Forum has further directed the opposite parties 2 to deposit sum of Rs. 1,00,000/- towards special damages imposed on them, out of which sum of Rs. 50,000/- was directed to be paid to the complainant towards mental agony and the remaining sum of Rs. 50,000/- was directed to be deposited in Consumer Welfare Fund. The above amount was directed to be paid within a period of 30 days, failing which the same was directed to carry interest @9% p.a. from the date of filing of the consumer complaint till payment.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that on 20.11.2008, the complainant purchased a hospitalisation benefit policy from opposite party No. 1 - National Insurance Company Limited (appellant before this Commission) for himself and his wife for assured sum of Rs. 1,50,000/- each. The policy was valid from 20.11.2008 to 19.11.2009. It is alleged that there is a joint venture between the opposite parties. The said mediclaim policy was got renewed by the complainant in the subsequent years. In May, 2011, the complainant suffered severe pain in his back and he consulted the doctor of Govt. Doon Hospital. On 02.06.2011, Dr. Naveen K. Ahuja of Govt. Doon Hospital, prescribed MRI and other tests to the complainant. The complainant got his MRI done and after analyzing the MRI report, the doctor referred him to Dr. Pankaj Arora. On the advice of Dr. Pankaj Arora, the complainant again got his MRI done on 08.06.2011, the report whereof was received on 10.06.2011 and in between the said period, the pain in the back of the complainant increased manifold. On 11.06.2011, the complainant consulted Dr. Harsh K. Johri and the complainant was got admitted in his hospital. The complainant was discharged from the hospital on 14.06.2011. The complainant gave intimation of his admission in the hospital to the insurance company. On discharge, the doctor advised the complainant bed rest of 2-2½ weeks. When the complainant did not get any relief, he consulted Dr. 3 J.C. Malguri on 02.07.2011, who prescribed blood test, medicines and belt to the complainant. When the complainant did not get any relief, he was admitted in the hospital on 15.07.2011. Dr. J.C. Malguri told the complainant about Ozone Therapy. The complainant got his treatment started through Ozone Therapy and got some relief. Thereafter, the complainant submitted the claim form with the insurance company and completed the entire formalities, but his claim was repudiated. Therefore, alleging deficiency in service on the part of the opposite parties, the complainant filed a consumer complaint before the District Forum, Dehradun.
3. The insurance company filed written statement before the District Forum and pleaded that the claim papers sent by the complainant were received by the opposite party No. 2 in two installments on 09.08.2011 and 14.09.2011 and that the treatment taken by the complainant comes under Exclusion Clause No. 4.13 of the policy and, as such, the claim was not payable and was rightly repudiated on 27.12.2011. No written statement was filed by the opposite party No. 2.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 13.08.2012 in the above terms. Aggrieved by the said order, the insurance company has filed this appeal.
5. None appeared on behalf of respondent No. 2. We have heard the learned counsel for the appellant and respondent No. 1 - complainant and have also perused the record.
6. Exclusion Clause No.4.13 of the policy states that, "the company shall not be liable to make any payment under this policy in 4 respect of any expenses whatsoever incurred by any person in connection with or in respect of Naturopathy, unproven procedure / treatment, experimental or alternative medicine / treatment including acupuncture, acupressure, magneto-therapy etc."
7. Learned counsel for the insurance company submitted that the treatment taken by the complainant comes under the category of "unproven procedure" and the insurance company is not liable to reimburse the mediclaim expenses incurred by the complainant in his treatment through Ozone Therapy.
8. The District Forum has taken cognizance of the affidavit of Dr. J.C. Malguri, an Orthopaedic Surgeon, who has stated that the complainant was suffering from slip disc and he had told the complainant that the said disease is curable without undergoing operation. He has also stated that Ozone Discolisis (vkstku fMLdksykbZfll) is an approved treatment in India and in Europe, the same is being used for the last 12 years. No evidence in rebuttal to the affidavit of Dr. J.C. Malguri, was adduced by the insurance company. This apart, the insurance company has failed to produce any medical literature / opinion in respect of the view that Ozone Therapy is an unproven procedure / treatment.
9. Thus, the District Forum has rightly observed that the opposite parties are guilty of deficiency in service by repudiating the claim of the complainant on illegal ground and the District Forum has rightly allowed the consumer complaint.
10. No dispute has been raised by the insurance company regarding the medical expenses incurred by the complainant in his treatment and, therefore, the District Forum was justified in awarding sum of 5 Rs. 1,39,398/-. Since the insurance company has made deficiency in service by repudiating the legitimate claim of the complainant, therefore, the complainant is entitled to interest @9% p.a. on this amount from the date of filing of the consumer complaint till payment. The District Forum has awarded sum of Rs. 5,000/- towards litigation expenses, which is justified. The other direction given by the District Forum regarding deposit of sum of Rs. 1,00,000/- towards special damages, is unwanted and the same can not be sustained and is liable to be set aside. In this regard, we may refer to a decision of the Hon'ble National Commission passed in the case of Amit Swami Vs. Coca Cola India Ltd. and others; II (2007) CPJ 256 (NC), pressed into service by the learned counsel for the appellant - insurance company, wherein it has been held that the reliefs granted by Consumer Fora are enumerated in Section 14 of Consumer Protection Act and the Commission can not pass any order for levy of penalty being credited in Consumer Welfare Fund. Thus, the present appeal filed by the insurance company is to be partly allowed and the order impugned is to be modified accordingly.
11. Appeal is partly allowed. Order impugned dated 13.08.2012 passed by the District Forum is modified and the appellant - insurance company is directed to pay sum of Rs. 1,39,398/- to the respondent No. 1 - complainant together with interest @9% p.a. from the date of filing of the consumer complaint till payment and Rs. 5,000/- towards litigation expenses awarded by the District Forum. Costs of the appeal made easy.
(SMT. KUSUM LATA SHARMA) (C.C. PANT) (JUSTICE B.C. KANDPAL) K