State Consumer Disputes Redressal Commission
Baldev Krishan vs Ashok Kumar Singla on 25 October, 2018
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH First Appeal No.778 of 2017 Date of Institution : 14.11.2017 Order Reserved on : 16.10.2018 Date of Decision : 25.10.2018 Oriental Insurance Company Limited, through its Branch Manager, G.T Road, near Bus Stand, Moga, through Shri Mohan Singh Thakur, Senior Divisional Manager, Oriental Insurance Company Limited, Divisional Office-1, SCO 99-100, Sector 17-B, Chandigarh. Appellant/Opposite party no.1 Versus 1. Sunita Arora, aged about 48 years, wife of S. Vijay Kumar, resident of Angad Nagar, House No. 706, Ward No. 16, Street No.1, Moga, Mob: 8427753200. Respondent no.1/Complainant 2. Punjab Government Employee and Pensioners Health Insurance Scheme, through its Secretary, Health Punjab, Chandigarh. 3. M.D Health Care Service (TPA) Private Limited, Maxpro Info Park D-38, Ist Floor, Industrial Area, Phase-1, Mohali Punjab through its Manager. Respondents/Opposite partiesno.2 and 3 First Appeal against order dated 20.09.2017 passed by the District Consumer Disputes Redressal Forum, Moga. Quorum:- Shri J. S. Klar, Presiding Judicial Member
Present:-
For the appellant : Sh.Satpal Dhamija, Advocate For the respondent no.1 : Sh.Dharinder Chopra, Advocate For the respondent no.2 : Sh.B.S Sidhu, Advocate For the respondent no.3 : Ex-parte. . . . . . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellant is to order dated 20.09.2017 of District Consumer Disputes Redressal Forum Moga directing appellant to pay the amount of Rs.2,40,000/- to respondent Sunita Arora of this appeal with regard to treatment expenses incurred by her with interest @ 9% per annum from 20.03.2017 till filing the complaint and further making payment of Rs.5000/- as compensation and Rs.3000/- as costs of litigation. Respondent no.1 of this appeal is complainant in the complaint and appellant of this appeal is opposite party no.1 and respondents no.2 and 3 of this appeal are opposite parties therein and they be referred as such hereinafter for the sake of convenience.
2. The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments, that she was insured with OP no.1 being government employee during the period of 2016. Premium thereof was paid to OP no.1 by Punjab Government covering all employees' benefits and their dependents. She was issued ID Card no.MD15-8427753200. She suffered from some knee problem and was examined by Dr. Manjinder Jit Singh MS Ortho Civil Hospital Moga, who advised her x-ray examination and after seeing her x-ray report, he advised her to reduce the weight. She was again checked up by Dr. Amit Garg of Fortis Hospital Mohali, as she was weighing 106 kg and suffering from Type II Diabetes for the last four years. She was on regular treatment for Type II diabetes and for reduction of her weight. She also asked by Dr. Amit Garg Fortis Hospital Mohali to control her growing weight and advised her for morbid obesity /metabolic surgery and at that time her BMI 414 kg/M2 multiply condition. She was checked up from CMC Hospital Ludhiana from Dr. Vivek David on 04.03.2015, who advised her to replace her knee as she was suffering from knee problem. She was diagnosed to have osteoarthritis from left knee and total knee replacement was required. The approximate cost of procedure thereof would be Rs.2 lac, as issued by CMC Hospital . She was suffering from chest problem due to obesity on 20.08.2015, so she got medically checked up from Dr. A.S Sodhi Moga , who advised her to reduce her weight. She was also got checked up from Dr. Amit Garg on 15.01.2016 , who advised her for metabolic surgery due to her unnecessary obesity. She was again checked up by Dr. Amit Garg at Fortis Hospital, when she was having weight 106 kg and was advised to reduce her weight, which would otherwise multiple her health problems. She was examined by Dr. Atul Joshi, who referred her to Dr. Amit Garg for admission on 11.03.2016. She was checked up in Apollo Spectra Hospital Delhi , where she was advised for metabolic surgery due to her obesity. She was admitted in Apollo Spectra Hospital Delhi on 28.03.2016 and discharged on 31.03.2016. She incurred expenses of Rs.2,40,000/-during her treatment at Apollo Hospital Delhi. After operation, she submitted all the bills to the concerned department, but her claim was repudiated on the ground that Morbid Obesity/Metabolic Surgery is cosmetic surgery. She has to undergo surgery to survive for her life from other diseases as her obesity was increasing day by day and this disease , if not checked could have been life threatening to her. She has challenged the act of OPs as arbitrary and illegal in not giving her the entire expenses on her treatment. She has prayed for direction to OPs to pay her medical expenses as she was covered under above insurance scheme.
3. Upon notice, OP no.1 appeared and filed written reply raising preliminary objections that complaint is not maintainable. The complainant has no locus standi to file the complaint. No deficiency in service on the part of OP no.1 is proved. The complaint is barred by limitation. It was denied that she is consumer of OP no.1 as there is no privity of contract between them. The complex questions of facts and law are involved in the present case, which cannot be adjudicated in summary manner. Her claim is not payable as per PGEPHIS Tender Exclusion Clause 20A(s). Her claim has been rightly repudiated by OP no.1, vide letter dated 15.05.2017. OP no.1 controverted other averments of the complainant, as pleaded in the complaint and prayed for dismissal of the complaint.
4. OP no.2 and 3 were set exparte before District Forum Moga, vide order dated 17.05.2017.
5. The complainant tendered in evidence her affidavit Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-59 and closed the evidence. As against it; OP no.1 tendered in evidence affidavit of Sh. Mohan Singh Thakur Senior Divisional Manager Oriental Insurance Company /OP no.1 as Ex.OP-1/1 along with copies of documents Ex.OP-1/2 to Ex.OP-1/4 and closed the evidence. On conclusion of evidence and arguments, the District Consumer Forum Moga accepted the complaint of the complainant by virtue of order dated 20.09.2017. Aggrieved by above order of the District Forum Moga, opposite party no.1 now appellant, has carried this appeal against the same.
6. I have heard learned counsel for the parties and have also examined the record of the case.
7. The counsel for the appellant has not disputed the fact that complainant spent the amount on her treatment of obesity in this case. The evidence on the record has been looked into by me with the able assistance of counsel for the parties. The contention of counsel for the appellant is that complainant is not proved to be 'consumer' of OP no.1 now appellant but it is without force. The Punjab Government took this policy for the benefit of its employees and beneficiaries. The complainant is beneficiary under the above scheme with the express approval of the Punjab Government, which hired the services of OP no.1 for the benefit of its employees. The complainant is, thus, proved to be the beneficiary of this scheme with express approval of the Punjab Government and as such is held to be consumer of OP. There is no dispute of this fact that complainant was operated for Obesity at Apollo Hospital Delhi and spent the amount thereat. Reference be made to the various bills issued by Apollo Hospital to complainant Ex.C-4 and Ex.C-6 on the record. Ex.C-7 is chest x-ray report of complainant and his OPD slip was issued by Civil Hospital Moga dated 06.02.2015 is Ex.C-8 on the record. Ex.C-9 is Fortis Hospital prescription slip. Dr. Amit Garg of Fortis Hospital diagnosed her as Morbid Obesity/Metabolic surgery (BMI 414 kg/M2 multiply condition). It is clearly recorded in Ex.C-9 prescription slip of Fortis Hospital that she was a case of Morbid Obesity. Ex.C-10 is another prescription slip of Dr. Amit Garg of Fortis Hospital in on the record. The certificate issued by Dr. Vivek is Ex.C-11 to complainant is on the record. Certificate issued by Christian Medical College Ludhiana to complainant dated 04.03.2015 is Ex.C-12 diagnosing her as osteoarthritis of left knee requiring total knee replacement for the left side. OP no.1 repudiated the claim of the complainant on the ground that treatment taken by her is a case of cosmetic surgery and it was not a case of Morbid Obesity surgery. The counsel for OP no.1 now appellant relied upon exclusion clause no.20 of the policy Ex.OP-1/4. Clause 20 of the policy states that the insurer shall not be liable to make any payment under this scheme in respect of any expenses whatsoever incurred in connection with or in respect of hospitalization benefits. Clause 20(5) of the policy states that inoculation or change of life or cosmetic or of aesthetic treatment of any description and plastic surgery other than as may be necessitated due to an accident or as a part of any illness. Cost of spectacles/contact lens. The counsel for the appellant contended that case of the complainant is of cosmetic surgery only, which is not covered under the policy. The District Forum has not accepted this contention of OP no.1 and 2 and rejected the same. I find that she was diagnosed to be a case of Morbid Obesity in Fortis Hospital. Even otherwise, obesity is fatal for a person particularly suffering from knee problem and chest problem and so on. Morbid obesity could lead to many diseases, which could further prove to be fatal to the affected person. Since it is recorded in Forts Hospital record that she was a case of Morbid Obesity and as such, this exclusion clause 20(5) of the policy is not attracted in this case. The National Commission has also held in "New India Assurance Company Ltd and another versus Anita Chaudhary and another" reported in 2016(4) CPJ 378 that Morbid Obesity is a serious disease that might be associated with severe complications which might be life threatening. The patient had history of obesity and gained weight for 15 years and attained maximum weight of 224 kg. Discharge summary reveals that diagnosis of insured was 'super obese' and he was hypertensive. National Commission awarded compensation for the same to the consumer. Similarly, National Commission has held in "United India Insurance Co. Ltd versus Sunil Gupta and another" reported in 2015(2) CLT 318 that bariatric surgery for morbid obesity was not aimed at improving the physical appearance of the complainant or to enhance the beauty. It was aimed at ensuring that he did not develop complications which might later prove to be life threatening. The treatment taken by the complainant cannot be faulted and the order of the insurance company to repudiate the claim on this point was held to be an error by National Commission holding that it is not covered under the exclusion clause. On the basis of law laid down by National Commission (supra) and in view of the facts of the case, it is held that claim is not excluded under Clause 20(5) of the policy.
8. The District Forum has correctly assessed the amount of Rs.2,40,000/- incurred on the treatment of the complainant. The submission of counsel for OP no.1 now appellant is that treatment was not taken in the empanelled hospital. Once the Morbid Obesity is life threatening disorder and as such, treatment could be taken in other than empanelled hospital due to its emerging condition. The complainant is entitled to seek reimbursement of the expenses incurred on her treatment from OPs. The order of District Forum cannot be faulted with in this appeal by me and is liable to be affirmed herein.
9. As a result of above discussion, I find no merit in the appeal and same is hereby dismissed.
10. The appellant had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and further deposited Rs.1,78,257/- as per compliance of the order of this Commission. Both these amounts with interest, if any, accrued thereon, be remitted by the registry to the respondent no.1/complainant of this appeal by way of crossed cheque/demand draft after the expiry of 45 days. Remaining amount, as per order of the District Forum shall be paid by the appellant to respondent no.1/complainant within 45 days from receipt of copy of this order.
11. Arguments in this appeal were heard on 16.10.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER October 25, 2018 (ravi)