State Consumer Disputes Redressal Commission
The New India Assurance Company Ltd. vs Vikram Goyal on 22 February, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.461 of 2021
Date of institution : 13.12.2021
Reserved On : 24.01.2023
Date of decision : 22.02.2023
The New India Assurance Company Limited, through its Divisional
Manager, Moga, through Authorized Officer Mr. Amritpal Pal Singh,
Manager, Regional Office, The New India Assurance Company
Limited, SCO 36-37, Sector 17-A, Chandigarh.
....Appellant/Opposite Party
Versus
Vikram Goyal son of Sh. Ashwani Goyal S/o Sh. Brahm Dutt Goyal,
resident of # 3 Green Park, Dune Ke, G.T. Road, Moga, Punjab.
....Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019 (As
amended up to date) against the order
dated 26.10.2021 passed by the District
Consumer Disputes Redressal Commission,
Moga.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellant : Sh. Rajesh K. Sharma, Advocate For the respondent : Sh. Devinder Kumar, Advocate.
JUSTICE DAYA CHAUDHARY, PRESIDENT Appellant/opposite party i.e. The New India Assurance Company Limited, Divisional Manager, Moga, through its Authorized First Appeal No.461 of 2021 2 Officer Mr. Amritpal Pal Singh, Manager, Regional Office, SCO 36-37, Sector 17-A, Chandigarh has filed the present appeal under Section 41 of the Consumer Protection Act, 2019 to challenge the order dated 26.10.2021 passed by the District Consumer Disputes Redressal Commission, Moga (in short, "the District Commission"), whereby the complaint filed by the respondent/complainant namely Vikram Goyal was allowed and a direction was issued to the opposite party to reimburse the medical bill of the complainant to the tune of ₹85,050/-
along with interest @ 8% per annum from the date of filing of the complaint i.e. 07.05.2018 till its actual realization and also to pay a lump sum compensation to the tune of ₹10,000/- for causing harassment and mental tension to the complainant as well as litigation expenses. The compliance of the order was to be made within a period of 45 days of the date of the receipt of copy of the order.
2. It would be apposite to mention here that hereinafter the parties will be referred, as have been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the respondent/complainant in the complaint filed by him before the District Commission are that he obtained a medical insurance policy from the opposite party under the scheme namely 'New Mediclaim 2012' bearing Customer ID PO356661539 for the period from 20.07.2016 to 19.07.2017. The complainant was taking the insurance First Appeal No.461 of 2021 3 policy from the opposite party regularly for the last 7/8 years. His family was also insured with the opposite party under various policies. The claim to the tune of ₹8 lac was insured under the policy. It was further mentioned in the complaint that the complainant was admitted in Thind Eye Hospital, wherein his Laser Surgery was performed on 08.09.2016. After discharge from the hospital, he intimated the opposite party and lodged the claim on 15.10.2016 along with all the relevant documents including doctor slip, hospital bills/receipts, test reports, Discharge Summary etc. However, vide letter dated 25.07.2017 the opposite party rejected the claim of the complainant under Clause 4.4.4 of the policy on the ground that Lasik Laser Eye treatment was not covered. It was further mentioned in the complaint that at the time of issuing the policy, only 3 pages thereof were sent to the complainant and no such document showing Clause 4.4.4 was annexed therewith and subsequently also no such Clause was ever explained to him. Earlier also, similar dispute was raised by the opposite party with regard to mediclaim policies. The complainant had filed two complaints and the same were allowed by the District Consumer Commission, Moga. Said orders passed by the District Commission were upheld by the State Commission, Punjab vide order dated 04.10.2017.
4. Stating to be a case of 'deficiency in service' on the part of the opposite party, the prayer was made in the complaint to issue First Appeal No.461 of 2021 4 directions to the opposite party to reimburse the mediclaim bill to the tune of ₹85,050/- along with interest @ 12% per annum from the date of lodging the claim till its realization and also to pay compensation to the tune of ₹50,000/- and litigation expenses of ₹20,000/-.
5. On issuing notice in the complaint, the appellant/opposite party filed reply, wherein certain preliminary objections were raised stating therein that the complaint was not maintainable and the complainant was estopped by his own act and conduct to file the complaint. Further objection was raised that the complainant had not complied with the terms and conditions of the policy. Further it was pleaded that the claim of the complainant was repudiated on the ground that Lasik Laser Eye surgery treatment was not covered as per Clause 4.4.4 of the policy and the claim was not payable as per Clause 4.4.2 of the Exclusion Clause.
6. By considering the averments made in the complaint and reply thereof filed by the opposite party and also after hearing the arguments raised on behalf of the parties, the complaint was allowed vide impugned order dated 26.10.2021 and certain directions were issued to the opposite party as mentioned above.
7. Said order dated 26.10.2021 has been challenged by the appellant/opposite party by way of filing the present appeal by raising a number of arguments.
First Appeal No.461 of 2021 5
8. Mr. Rajesh K. Sharma, learned counsel for the appellant submits that the District Commission has passed the impugned order by allowing the complaint without appreciating the evidence produced by the appellant on record before it and the impugned order was based on wrong facts. Learned counsel further submits that the claim of the complainant was repudiated on the ground that the Lasik Laser Eye treatment was not covered under the policy. As per the terms and conditions of the policy, only the injury caused due to burns was covered, whereas the treatment for correction of eyesight, eyeglasses, cost of spectacles and contact lenses was not covered under the policy. The requirement of the policy was exempted in case the insured has suffered any injury in an accident/burn. The complainant did not suffer any injury due to accident and as such the claim was rightly repudiated. Learned counsel also submits that the Lasik Eye surgery is the normally performed Laser Refractive surgery for correction of the vision problems. The treatment taken by the complainant was not due to any accident but it was for removing glasses/contact lenses. Learned counsel also submits that the District Commission has wrongly relied upon Section 45 of the Insurance Act, 1938 & Insurance Laws (Amendment Act) 2015, as it deals with policy of life insurance. Moreover, the opposite party did not raise any plea of fraud or mis-representation. Learned counsel further submits that the complainant has taken a false plea that the terms and conditions of the First Appeal No.461 of 2021 6 policy were not supplied at the time of issuance thereof. However, the District Commission has not considered the fact that it was mentioned in the policy itself that 'This policy was subject to terms and conditions of New Mediclaim 2012'. The complainant had been continuously taking the same policy since the year 2015 and he never made any complaint to the Insurance Company that he did not receive the terms and conditions of the policy. Further, previously also there was litigation between the parties and as such the terms and conditions of the policy were in the knowledge of the complainant. Learned counsel has also relied upon the judgment of case The New India Assurance Company Limited v. Vikram Goyal 2001 (4) RCR (Civil) 179 in support of his contentions.
9. Mr. Devinder Kumar, learned counsel for the respondent/complainant submits that the District Commission has passed the impugned order after appreciating the evidence available on record. Learned counsel further submits that only three pages of the policy were supplied at the time of issuance thereof and all the terms and conditions of the policy including Clause 4.4.4 were never supplied to the complainant and as such he is not bound by the same. The onus lies on the opposite party-Insurance Company that the terms and conditions were supplied to the insured but no such evidence has been led by the opposite party to prove so. Even otherwise, the Lasik Laser treatment was nowhere mentioned in the said Clause. Learned First Appeal No.461 of 2021 7 counsel has relied upon judgments of the Hon'ble Supreme Court in the cases of Saurashtra Chemicals Ltd. v. National Insurance Co. Ltd. Civil Appeal No.2059 of 2015 decided on 13.12.2019 and M/s Modern Insulators Ltd. v. The Oriental Insurance Co. Ltd. 2000 (I) CPJ 1 (SC), in support of his contentions.
10. We have heard the arguments of learned counsel for the parties and have also carefully perused the impugned order passed by the District Commission, written arguments submitted by the parties and all relevant documents available on the file.
11. Facts of the case regarding filing of the complaint by the complainant before the District Commission, reply thereto filed by the appellant/opposite party, allowing of said complaint and thereafter filing of the present appeal by the appellant/opposite party are not disputed.
12. It is also not in dispute that the respondent/complainant got a Medical Insurance Policy from the appellant/opposite party under the scheme 'New Mediclaim 2012' w.e.f. 20.07.2016 to 19.07.2017. The respondent/complainant was regularly paying the premium to the appellant/opposite party during the last 7/8 years. Other family members of the complainant were also insured with the appellant/opposite party under different policies. In the present case, the mediclaim up to ₹8 lac was insured. As per case of the complainant, he remained admitted in the hospital for Lasik Laser First Appeal No.461 of 2021 8 Surgery on 08.09.2016 and intimation in this regard was also sent to the opposite party immediately after discharge from the hospital. All the documents were supplied to the opposite party including doctor slip, hospital receipt, indoor bill, test/Lab. reports as well as Discharge Summary for the purpose of reimbursement of mediclaim. However, the claim of the complainant was rejected as per Clauses 4.4.2 and 4.4.4 of the Insurance Policy on the ground that the Lasik Laser treatment was not covered under the policy. As per stand of the complainant, only three pages of the policy were supplied and no terms and conditions were supplied. As per argument raised by learned counsel for the appellant/opposite party, the terms and conditions were in the knowledge of the complainant as there was litigation between the parties in the past and the complainant was well aware of the terms and conditions of the policy. Further a stand has been taken by the opposite party that the terms and conditions were supplied to the insured but no documentary evidence in this regard has been produced on record either before the District Commission or before this Commission at the time of filing the appeal. Simply by saying that the terms and conditions were in the knowledge of the complainant because of earlier litigation is no ground to hold that the terms and conditions of the policy were supplied to the complainant or the same were already in his knowledge.
First Appeal No.461 of 2021 9
13. It is also relevant to mention here that in the earlier litigation i.e. First Appeal No.99 of 2017, which was decided by this Commission vide order dated 04.10.2017, the appellant/opposite party had taken the stand that the terms and conditions of the policy were supplied to the complainant and his father but no documentary evidence was produced. In Paras-17 & 18 of said order, this Commission had held as under:
"The District Forum while allowing the complaint filed by the complainant has observed in para no.10 of the impugned order as under:-
"10.....................
The case of the complainant is that opposite parties never supplied any terms and conditions of the policy along with policy schedule to them and now on the basis of false exclusion clause they want to avoid the payment of genuine claim of the complainant. On this point, our Apex Court in case titled as M/s Modern Insulators Ltd. v. The Oriental Insurance Company Ltd.-2000(1) CPR 93 (Supreme Court) 242 held that clauses which are not explained to complainant are not binding upon the insured and are required to be ignored.
Furthermore, it is generally seen that Insurance Companies are only interested in earning the premiums and find ways and means to decline the claims. He further placed reliance on citation 2008(3) RCR (Civil) Page 111 titled as New India Assurance Company Ltd. vs. Smt. Usha Yadav & Others wherein our Hon'ble Punjab & Haryana High Court held that it seems that Insurance Companies are only interested in earning premiums and find ways and means to decline the claims. The conditions, which generally are hidden need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases, rely upon the clauses of agreement which a person is generally made to sign on dotted lines at the time of obtaining the policy. He further put reliance upon citation 2012(1) RCR (Civil) 901 First Appeal No.461 of 2021 10 titled as IFFCO TOKYO General Insurance Company Ltd. v. Permanent Lok Adalat (Public Utility Services), Gurgaon and others, wherein our Hon'ble Punjab and Haryana High Court held that Contract Act, 1872-Insuracne Act, 1938-contract among unequal-Validity-Mediclaim Policy-Exclusion Clause-Pre-existing disease-Exclusion clause is standard form of contracts-When bargaining power of the party is unequal and consumer has no real freedom to contract-Courts can strike down such unfair and unreasonable clause in a contract where parties are not equal in bargaining power."
I do not find any illegality or perversity in the aforesaid finding of the District Forum. I have also carefully gone through the records of the case and I am not able to lay my hands on any such document or evidence led by the opposite parties to prove that the ailment of the complainant was only due to the use of intoxicating and Drugs/Alcohols etc. Therefore, it is held that the claim of the complainant has been repudiated illegally.
18. In view of my above discussion, I do not find any merit in the present appeal and the same is hereby dismissed; however, with no order as to costs."
14. From perusal of aforesaid findings/decision of this Commission, it is clear that no terms and conditions were supplied to the complainant even in the earlier litigation or prior to that. In the present case also, no evidence has been produced by the opposite party to prove that the terms and conditions of the policy were ever supplied to the complainant at the time of renewal of the policy or prior to that or thereafter. Further, since a specific finding was recorded by this Commission that no terms and conditions of the policy were supplied earlier, then the opposite parties should have supplied the terms and conditions of the policy at the time of renewal of the policy in First Appeal No.461 of 2021 11 dispute but it has not been done so by the opposite party. Therefore, the plea of the appellant in this appeal that the complainant was already having the knowledge of the terms and conditions is falsified. The onus is upon the party to prove any fact or averment if raised at any stage but in the present case, the opposite party has failed to prove in doing so. Meaning thereby the appellant/opposite party has not proved in any manner that the said Clause 4.4.4 was brought to the notice of the complainant at any point of time or made available to him or sent by any mode.
15. Even in case, Clauses 4.4.1, 4.4.2 and 4.4.4 of the policy have been relied upon by the appellant/opposite party but we are of the view that the claim has been illegally repudiated. For ready reference, said Clauses are reproduced as under:
"4.4.1: Injury / Illness directly or indirectly caused by or arising from or attributable to War, invasion, Act of Foreign enemy, War like operations (whether war be declared or not), nuclear weapon/ ionising radiation, contamination by Radioactive material, nuclear fuel or nuclear waste or from the combustion of nuclear fuel. 4.4.2 a. Circumcision unless Medically Necessary for treatment of an Illness not excluded hereunder or as may be necessitated due to an Accident b. Change of life/sex change or cosmetic or aesthetic treatment (except for burns/Injury) of any description such as correction of eyesight, etc. c. Plastic Surgery other than as may be necessitated due to an Accident or as a part of any Illness.
4.4.4: Cost of braces, equipment or external prosthetic devices, non- durable implants, eyeglasses, cost of spectacles and contact lenses, First Appeal No.461 of 2021 12 hearing aids including cochlear implants, durable medical equipment."
16. Perusal of aforesaid Clauses shows that the Lasik Laser treatment is not specifically excluded/mentioned therein. Similar issue came up for hearing before the State Consumer Disputes Redressal Commission, Andhra Pradesh in the case of K. Ramachandra Rao Nellore vs M/s New India Assurance Co. Ltd. F.A. No.1183 of 2006 which was decided vide order dated 23.12.2008. The relevant portioin of said judgment is reproduced as under:
"The documents filed by the complainant would undoubtedly show that the patient was suffering from pain in both eyes and the usage of glasses would not help him and the disease having been diagnosed as irregular astigmatism and Dr. P. L. Rao an eye specialist opined that it could be corrected by Lasik laser surgery, since this was not controverted it cannot be said that it comes under exclusion clause 4 of the terms and conditions of the policy.
In fact the Supreme Court in Collector of Central Exercise Vs. Ishaan, 2008 (6) Supreme 558 held that Cosmetic means any article intended to be rubbed, poured, sprinkled or sprayed on, or introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance whereas a drug was intended to cure diseases. It was further held that merely because the product could be put to cosmetic use would not by itself make it a cosmetic product and the miniscule percentage used is also not a deciding factor as the miniscule percentage does not change the nature of the product from medicament to the cosmetic products.
In M/s. Puma Ayurvedic Herbal (P) Ltd. Vs. CCE, Nagpur, reported in AIR 2006 SC 1561, the Supreme Court held that cosmetic products are meant to improve appearance of a First Appeal No.461 of 2021 13 person, i.e., they enhance beauty whereas a medical product or a medicament is meant to treat some medical condition, the fact that use of medicinal element in product was minimal does not detract from it being classified as medicament. When this Lasik laser surgery was used for correction of irregular astigmatism at no stretch of imagination it cannot be said that it was cosmetic in nature."
17. In similar circumstances, this Commission has also passed the judgment dated 16.03.2015 in F.A. No.1334 of 2013 (New India Assurance Company Ltd. v. Sippan Jain) and held as under:
"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 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.First Appeal No.461 of 2021 14
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:-
"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 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."First Appeal No.461 of 2021 15
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."
18. In view of the facts and circumstances as mentioned above as well the ratio of judgments as referred above, the treatment taken by the complainant was by way of Lasik Laser Surgery, which is commonly referred to as Laser Eye Surgery. It 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 the visual acuity. The judgment relied upon by learned counsel for the appellant is not applicable to the facts and circumstances of the present case and is distinguishable. The claim of the complainant was wrongly and illegally repudiated by the opposite party. So, we do not find any illegality or infirmity in the impugned order passed by the District Commission.
First Appeal No.461 of 2021 16
19. Accordingly, the appeal being without any merit is hereby dismissed and the impugned order dated 26.10.2021 passed by the District Commission is upheld.
20. Since the main case has been disposed of, so all the pending Miscellaneous Applications, if any, are accordingly disposed of.
21. The appellant had deposited a sum of ₹25,000/- at the time of filing of the appeal. Said amount, along with interest which has accrued thereon, if any, shall be remitted by the Registry to the District Commission forthwith. The respondent/complainant may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
22. The appeal could not be decided within the statutory period due to heavy pendency of court cases and pandemic of COVID-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER February 22, 2023.
(Gurmeet S)