National Consumer Disputes Redressal
M/S. Royal Sundaram Alliance Insurance ... vs Melanie Das on 22 January, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 366 OF 2014 (Against the Order dated 02/04/2014 in Complaint No. 17/2014 of the State Commission Haryana) 1. M/S. ROYAL SUNDARAM ALLIANCE INSURANCE CO. LTD. & ANR. NORTHERN REGIONAL OFFICE & SERVIVING BRANCH, PLOT NO. 136, 1ST FLOOR, SECTOR-44, GURGAON, HARYANA ...........Appellant(s) Versus 1. MELANIE DAS D/O. LATE DR. A.K. SAHA, RESIDENT OF D4/1, RAJPUR RESIDENCY, MUSSORIE ROAD, MALSI, DEHRADUN-248001 ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER
For the Appellant : Mr. S. M. Tripathi, Advocate with
Ms. K. Karuna Sree, Advocate For the Respondent : Mr. Jayant Tripathi, Advocate with
Mr. Dinesh Dahiya, Advocate
Dated : 22 Jan 2018 ORDER
1. In this appeal under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), the appellant questions the correctness of order dated 02-04-2014 passed by the State Consumer Disputes Redressal Commission, Haryana at Panchkula (for short "the State Commission"), whereby the complaint was allowed and directed the appellant to pay Rs.17,70,255/- with interest @9% per annum from the date of filing of complaint along with Rs.1,00,000/- as compensation.
2. The complainant, Ms. Melanie Das, since the year 2005 is a frequent visitor to the United States of America (USA), as her son was studying there. During such visits, she had been taking 'Single Trip Secure Class Silver Policy' from M/s. Royal Sundaram Alliance Insurance Company Ltd. (for short "the Insurance Company"). In the year 2011, before leaving for the US, she took one such policy from the regional office of the Insurance Company at Gurgaon (Haryana). A premium of Rs.17,101/- for the policy was paid by cheque dated March 1, 2011, at Gurgaon.
3. The complainant left for the US on March 7, 2011, and in the last week of March 2011, she started having episodes of double vision, known as 'Diplopia' each was lasting for 15 to 20 seconds, about 3 to 4 times a day. The problem persisted, therefore, she consulted one doctor in Cleveland, who after evaluation, advised her to undergo an MRI scan. She informed the OP-Insurance Company about her health problem, who in-turn, asked her to contact the US helpline. The US helpline of the Insurance Company permitted her to proceed with the MRI as advised. Accordingly, MRI was done on May 6, 2011 at the Eastside Imaging Centre, Cleveland, it revealed 'Right Posterior Clinoid Meningioma'. Therefore, she was referred for further management. The doctors in USA had recommended a Gama Knife Radio Surgery (GKRS) to be conducted within the next two months costing US$60000 to US$70000. Due to the location of meningioma and the severity of her problem, IMRT/IGRT procedure was carried out. She had incurred US$39339 towards medical expenses. The complainant requested the OP to reimburse the expenses incurred by her on diagnostic tests as well as on treatment. In spite of repeated requests, telephone calls & emails, there was no avail. Subsequently, OP repudiated the claim vide letter dated July 5, 2011 on the ground that, their panel doctor has opined that 'Meningioma' is usually a slow growing disease and takes several months to years to attain the size of about 3 cms., thus, it was pre-existing disease of the complainant. The expenses incurred for treatment of pre-existing condition was outside the scope of policy. Being aggrieved by the repudiation, complainant issued a legal notice to the Insurance Company on March 12, 2012, to the regional office at Gurgaon, calling upon them to reimburse the entire expenses incurred by her and also towards future expenses. Having failed to get any response thereto, on April 2, 2012, the complainant filed complaint against the Insurance Company before the State Commission, inter alia, praying for a direction to the Insurance Company to reimburse the medical expenses incurred by her for treatment along with punitive damages and cost of proceedings, totaling Rs.31,23,467/-.
4. The OP - Insurance Company filed written statement before State Commission. The OP submitted that the State Commission at Panchkula had no jurisdiction to entertain the complaint as the policy was issued from the Corporate Accidents and Health claims department based at Chennai. She took treatment at the United States. The complainant had submitted her claim with their Chennai office and same was repudiated.
5. The State Commission initially on 12-02-2013 dismissed the complaint holding that it had no territorial jurisdiction. Therefore, the appeal was preferred by the complainant before this Commission and on 13-01-2014 this Commission set aside the order passed by the State Commission and remanded the complaint back to State Commission for deciding it on merits. Thereafter, the State Commission on the basis of pleading and evidence allowed the complaint vide order dated 02-04-2014 and directed the appellant-OP to pay Rs.17,70,255/- with 9% interest from the date of filing of complaint along with Rs.1,00,000/- as compensation. Being aggrieved the OP appellant filed this instant appeal.
6. I have heard the counsel for both the parties. The learned counsel for the appellant-insurance company submitted that, the State Commission passed the order without considering the terms and conditions of the policy. It has failed to consider that the meningioma is very slow growing. As per the medical record and MRI, it was right posterior Clinoid meningioma, about 3 cm., therefore, such big size tumor could not have developed in a short span of 1½ month, thus, it was pre-existing at the time of obtaining the policy. It was excluded from the scope of insurance for the reimbursement of treatment. It was not medical emergency where the immediate treatment was necessary. The complainant could have taken treatment after returning to India as opined by the doctors in US. The counsel further submitted that the policy shall be null and void in the event of untrue or incorrect statement, misrepresentation, mis-description or non-disclosure of any material particular in the proposal form. Counsel brought my attention to the description of one medical thesis from Medical University of California, Los Angeles (UCLA), it is reproduced as below:
"Treatment:
The decision of whether to and how best to, treat a meningioma is based on multiple factors, including size and location of the tumor, symptoms, growth rate, and age of the patient (among others). In general, there are three basic options: observation, surgical removal, and radiation.
Observation: Meningiomas are often slow growing, increasing in size only 1-2 mm per year. Representing yearly MRI scans may be appropriate in the following situations:
Patents with small tumors and mild or minimal symptoms, no impact on quality of life, and little or no swelling in adjacent brain areas.
Older patients with very slowly progressing symptoms, Related seizures can be controlled with medication."
7. The counsel further submitted that the eminent neurosurgeon, Dr. V. G. Ramesh had examined medical record of the insured, and opined that, meningioma is usually slow growing and it takes several months to years to attain the size of 3 cm, hence the likely tumor had existed before inception of the policy and remained asymptomatic. Thus, the State Commission had failed to appreciate the pre-existing condition, which specifically was excluded from the scope of the policy. The counsel further submitted that the treating doctor at Hillcrest hospital opined that GKRS could be done in India within next two months. The counsel brought my attention to the advice given by treating doctor in US. It is reproduced as below:
"Given difficult location of the tumor and its favourable size, I recommend treatment with Gamma Knife radio-surgery. Given that she is from India, she could certainly have the treatment done here at CCF or in any major high volume center in India (such as in Delhi and Mumbai) will discuss options with her family. Given her symptoms of relative short duration, I recommend Gamma Knife Radio-surgery to be done within next two months."
8. The arguments on behalf of the respondent/complainant that the complainant was elderly lady and travelling US since 1999, and use to take international travel insurance policy. She had taken identical polices from the OP in the year 2008-1010. After arriving in USA in March, 2011 to visit her son, she started experiencing 'Diplopia' i.e. blurred and double vision, therefore, she consulted Dr. Young Kwok in US. After series of clinical investigations and MRI she was diagnosed as suffering from tumor which was present below the optic nerve, and she was advised GKRS within two months. It was also informed her that, if she fails to undergo treatment there will be risk of becoming blind. As per the report of Dr. Young Kwok dated 19-09-2011 there was a mass of 2.9 cm and because of its location she was not fit to undergo the surgery, which has enhanced risk of morbidity and mortility. She took number of opinion from various doctors in US, they also have suggested for non-invasive treatment. Therefore, she opted for Gamma Knife Radiosurgery by IMRT and IGRT for the cost of US$40000. The OP refused to honour the claim on the basis of tumor was pre-existing condition.
9. I have perused the insurance policy, the Health Cover Benefit Clause and the Exclusions applicable to Benefit (a-e). According to the clause (b) any medical expenses claim with respect to pre-existing condition shall not be payable. I have also perused the medical treatment record of Hillcrest hospital and Central Mariland Radiation Oncology. The treating Neurologist, Dr. Dashefsky at Hillcrest hospital noticed the abnormality in the right eye and MRI was advised. It was performed on 06-05-2011. It showed 2.9 cm mass in the right prepontine cistern causing moderate compression of the right side of the pons and medical temporal lobe, as well as compression of the right optic tract and chiasm. She was recommended therapy to prevent blindness. Due to its location she was not a candidate for surgery which posed a significant risk of morbidity and mortality. Also, due to the optic nerve, chiasm compression, Gamma Knife Stereotactic Radiosurgery posed a significant risk of blindness. She was recommended fractionated radiation to prevent blindness and toxicity. Accordingly, she was given external beam therapy.
10. To know about meningioma and its treatment, I have gone through standard books of Neurology/Neurosurgery and Neuropathology, viz., Youmans & Winn Neurological Surgery, Principles of Neuro Surgery by Setty Rengachary, Greenfield's Neuropathology and Neurosurgery of CNS tumors. It is very slowly growing tumor and most of the times asymptomatic and unnoticed.
11. In the instant case, after thoughtful consideration to the arguments advanced by both the parties, it is an admitted fact that complainant had travelled to US and underwent GKRS for treatment of meningioma and incurred medical expenses. The complainant had never any symptoms of diplopia before going to US. It is also pertinent to note that the OP failed to produce any evidence or medical record to establish that prior to taking of the policy the complainant had suffered diplopia. Therefore, in my view it was a wrong presumption of the OP that the tumor was pre-existing.
12. I have perused the entire medical record and evidence filed by both the parties. According to the opinion of Dr. Sanjeev Dua, Neurosurgery, Max Hospital, Dehradun who stated that "tumor was critically located and was in position where patient could lose her vision". Thus, it was a "Cache 20" situation for the patient. Any person having apprehension of loss of vision in future will seek immediate remedy or treatment. In this context, the State Commission had categorically observed as under:
"9. The contention raised on behalf of the opposite parties is not tenable. This is only the opinion of the doctors that the complainant could have taken treatment after returning to India. The affidavits of D. V. G. Ramesh, M Ch (Neuro), DNB (Gen. Sur.) DNB (Neuro) FICS, FMMC does not state what the consequences could have suffered by the complainant till she returned to India and then got herself treated. He has not said anything regarding delay in treatment. She obtained the policy to cover her treatment while abroad. If she was to get herself treated after return to India, there was no purpose of securing the policy or taking it, otherwise the manner in which the complainant suddenly suffered, possibility cannot be ruled out that it could have adversely affected her health leading to total blindness. Thus, she was justified in getting herself treated."
13. The counsel for OPs also raised the issue that State Commission failed to consider the condition "Incontestability and Duty of Disclosure", it is reproduced as below:
"The policy shall be null and void and not benefit shall be payable in the event of untrue or incorrect statements, misrepresentation, misdescription or on non-disclosure in any material particular in the proposal form, personal statement, declaration and connected documents, or any material information having been withheld, or a claim being fraudulent or any fraudulent means or devices being used by the insured person or any one acting on his behalf to obtain any benefit under this policy."
It is pertinent to note that, at the time of undertaking the policy, the complainant had no knowledge of the fact that she was suffering from "Right Posterior Clinoid Meningioma" and as such there was no question or occasion for its declaration in the proposal form. Moreover, complainant's symptoms of diplopia were noticed in March 2011. It was due to the meningioma pressing over the optic nerve. Therefore, I do not think, it was either misrepresentation or misdescription or non-disclosure by the complainant.
14. It is quite surprising to read the exclusion clause 1(c) that "Treatment that could reasonably be delayed until the Insured Person's return to the Republic of India." No doubt it was not an emergency, but it was also unpredictable that how the disease especially the tumors behave in future, no one can wait and watch under such circumstances and invite undue risk by the delay in the treatment. In the case of tumors it is most important that early detection and treatment at early stage will definitely useful to avoid future complications and even mortality also. In my view the OP was trying to repudiate the claim one or other ground. The complainant took treatment in US to avoid unforeseen complications. The decision of the complainant to opt treatment by GKRS was a prudent and correct decision.
15. Thus, it is not acceptable that the meningioma was pre-existing in the instant case. For example, logically the insurance company will not cover heart attack caused by arthrosclerosis/arteriosclerosis commonly because arteriosclerosis is pre-existing due to dietary and several reasons. The insurance companies are misleading the innocent consumers by introducing such unconscionable and misleading terminologies like pre-existing disease. The human body itself is a complex structure, having regular changes at molecular level, which are undetectable until the signs and symptoms are seen. For example, simple dysplasia is a pre-disposing for development of cancer, but cancer will manifest in the 5th or 6th decade of life.
16. On the basis of foregoing discussion, there is no need to interfere in the order of the State Commission. I do not find any merit in the instant appeal, hence, it is dismissed.
The parties to bear their own costs.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER