National Consumer Disputes Redressal
National Insurance Company Ltd. vs Hiralal Girdharilal Chaudhary on 16 June, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2946 OF 2015 (Against the Order dated 06/08/2015 in Appeal No. 778/2011 of the State Commission Gujarat) 1. NATIONAL INSURANCE COMPANY LTD. 2E/9,JHANDEWALAN EXTENSION, NEW DELHI - 110055 ...........Petitioner(s) Versus 1. HIRALAL GIRDHARILAL CHAUDHARY R/O VISHWAKARMANAGAR,CHHAPARIYA ROAD, NEAR CANAL. HIMATNAGAR, DISTRICT : SABARKANTHA, GUJARAT ...........Respondent(s)
BEFORE: HON'BLE MR. C. VISWANATH,PRESIDING MEMBER
For the Petitioner : Mr. Atishay K. Prasad, Advocate For the Respondent : NEMO
Dated : 16 Jun 2021 ORDER
The present Revision Petition, under Section 21(1)(b) of the Consumer Protection Act, 1986 has been filed by the Petitioner against the order dated 06.08.2015 of the Gujarat State Consumer Disputes Redressal Commission (hereinafter referred to as the "State Commission") in Appeal No. 778/2011 dated 6.8.2015.
Along with the Revision Petition, IA/8225/2015, an application for condonation of delay has also been filed by the Petitioner. The Registry of this Commission has calculated the delay of 8 days. As per the
3. The case of the Complainant is that he had taken a Hospitalization Benefit Policy No.301101/48/09/8500000148 in the year 2004 which was renewed from time to time. During the Policy period from 10.5.2009 to 9.5.2010, the Complainant had trouble of gas and underwent treatment at the Asian Surgical Hospital of Dr. Mahendra Narvariya, for which he incurred an amount of Rs.3,45,817/-. On a claim filed by him, the Opposite Party paid Rs.69,545/-. Rest of the claim of the Complainant was rejected on the ground that cosmetic surgery was not covered under the Policy. Aggrieved by rejection of his claim, the Complainant filed a Complaint with the District Forum with the following prayer:-
"(A) Be pleased to direct the opponent to pay to the complainant the amount of claim of Rs.2,30,455/- Rupees Two Lakhs Thirty Thousand Four Hundred Fifty Five only after deducting the amount of Rs.69,545/- which is paid by the opponent out of Insurance value of Rs.3,00,000/- including the bonus as per the Hospitalization Benefit Policy No.301101/48/09/8500000148 dated 10/05/09 taken by the opponent Company;
(B) Be pleased to direct the opponent Company to pay Rs.2,30,455/- alongwith interest to the complainant;
(C) Be pleased to grant other and further relief as may be deemed just and proper as per the law and in the interest of justice;
(10) Be pleased to award all the cost and for the mental agony etc. to the complainant from the opponent Company."
4. The case was contested by the Opposite Party stating that under Clause 4.5 of the Policy, treatment of Gastrectomy was not covered under the Policy and the claim amounting to Rs.69,545/- which was admissible under the Policy, was duly paid to the Complainant.
5. The District Forum after hearing both Parties, partly allowed the Complaint and passed the following order:-
"The opponent Insurance Company is ordered that by not providing the service as per the policy to the complainant, financial and mental loss has been caused and therefore, the opponent should pay Rs.2,30,000/- (Rupees Two Lakhs Thirty Thousand only) to the complainant alongwith interest @ 6% from the date of application within 60 days. In case of default therein, the complainant shall be entitled to get the aforesaid amount alongwith interest @ 9%.
Looking to the circumstances of the case, no order as to cost is passed."
6. Aggrieved by the order of the District Forum, the Opposite Party filed Appeal before the State Commission.
7. The Appeal was rejected and the order of the District Forum was upheld with a modification that interest of 6% be paid from the date of application as against an interest @ 9% if the amount was not paid as ordered by the District Forum. Aggrieved by the order of the State Commission, the Petitioner filed the present Revision Petition before this Commission.
8. Heard the Learned Counsel for the Petitioner and also carefully perused the record. Learned counsel for the Petitioner argued at length that the claim of the Complainant was allowed to the extent it was covered under the Policy and treatment for Gastrectomy falls under cosmetic surgery and was excluded in the Insurance Policy. The claim for the same, therefore, was disallowed.
9. The brief facts of the case are that the Respondent / Complainant had taken Hospitalization Benefit Policy from the Petitioner / Insurance Company in the year 2004 and renewed the same for the period 10.5.2009 to 9.5.2010. During this period, the Respondent / Complainant underwent treatment for Gastrectomy at the Asian Surgical Hospital of Dr. Mahendra Narvariya from 24.3.2010 to 29.3.2010. According to him, he incurred an expenditure of more than Rs.3 lakhs for the operation and treatment. The Petitioner paid Rs.69,545/- and rejected the rest of the claim on the ground that cosmetic surgery was not payable under the Policy. The part rejection of the claim of the Respondent was based on Clause 4.5 of terms and conditions of the Policy document, which reads as follows:-
"4.0 Exclusions :
The Company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any person in connection with or in respect of."
"4.5 Circumcision unless necessary for treatment of a disease not excluded hereunder or as may be necessitated due to an accident. Vaccination or inoculation or change of life or cosmetic or aesthetic treatment of any description, plastic surgery or as part of any illness."
10. Repudiation letter dated 22.11.2010 was issued by the Petitioner stating that as per Clause 4.5 of the terms and conditions of the Policy, amount incurred for treatment of Gastrectomy was not payable as it related to cosmetic treatment and the amount, which was due to the Complainant, had already been paid. The Petitioner placed on record a letter from a private doctor - Dr. Bimal Goswami of Shivam Surgical Hospital. He stated that Morbid Obesity correlates with a Body Mass Index (BMI) of 40 kg/n with being 100 pounds overweight. He also recorded that in certain circumstances, less severally obese patients with BMI between 35 to 40 are also considered for surgery but in this category, patients are with high risk co-morbid conditions and severe obesity and that the Respondent / Complainant did not fall under the above categories. This was a case of obesity and not of Morbid Obesity.
11. Medical science is not an exact science and is to be seen with reference to an individual patient. It is not the case that the Respondent was a slim and trim person, he had a Body Mass Index of 38.9 kg/m2. He had been gaining weight since 1986 and was also a diabetic. He was also a Hypertensive patient of medication. Dr. Mahendra Narvariya who operated upon the Respondent had clearly recorded that he had been suffering from Morbid Obesity, HTN, Type-2 DM, Dyslipidemia, and Gallbladder stone disease and therefore had undertaken surgery for both Gastrectomy and Cholecystectomy. By no stretch of imagination can it be said that the Respondent underwent Gastrectomy for cosmetic purpose. On the other hand, Dr. Bimal Goswami neither examined the patient nor had given any evidence in the Court.
12. The District Forum after hearing both the Parties held that the Opposite Party had not produced any evidence to prove that the Complainant had taken treatment for the purpose of cosmetic surgery. The Complainant had not, therefore, violated any condition of the Policy.
13. The State Commission observed that there was no term or condition that the Complainant was not entitled to get the reimbursement for the treatment taken for Gastrectomy. The Opposite Party had rejected the claim treating Gastrectomy as cosmetic surgery. The Opposite Party had materially erred in law and facts and the order of the District Forum was legal, just and proper.
14. Jurisdiction of this Commission under Section 21 (b) is very limited. This Commission is not required to re-appreciate and reassess the evidences and reach to its own conclusion. The Court can intervene only when the Petitioner succeeds in showing that the Fora below has wrongly exercised its jurisdiction or there is a miscarriage of justice. It was so held by the Hon'ble Supreme Court in the case of Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. (2011) 11 SCC 269 has held as under: -
"13. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora."
15. Same principle has been reiterated by Hon'ble Supreme Court in the case of Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H & R Johnson (India) Ltd. and Ors. (2016 8 SCC 286 wherein Hon'ble Supreme Court has held as under:-
"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has failed to exercise their jurisdiction or exercised when the same was not vested in their or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."
16. I see no reason to disagree with the concurrent findings of both the Fora below. There is no infirmity or illegality in the impugned order, warranting interference in revisional jurisdiction. Revision Petition is, therefore, dismissed with no order as to costs.
...................... C. VISWANATH PRESIDING MEMBER