State Consumer Disputes Redressal Commission
K. Ramachandra Rao Nellore vs M/S. New India Assurance Co. Ltd And ... on 23 December, 2008
A
BEFORE
THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 1183/2006
against C.C. 168/2005, Dist. Forum, Nellore.
Between:
K.
Ramachandra Rao
S/o.
Tirumala Rao
Age:
55 years,
Administrative
Officer
LIC
Of India,
Atmakur
Nellore
Dist. *** Appellant/
Complainant
And
1.
The Branch Manager
M/s.
New India Assurance Co. Ltd.,
Subedarpet,
Nellore-524 001.
2.
The Senior Divisional Manager
The
New India Assurance Co. Ltd.,
D.O.-
120 700, Maker Chambers-III
Nariman
Point, Mumbai. *** Respondents/
Opposite
Parties
Counsel
for the Appellant: Mr.
B. Ramesh
Counsel
for the Resp: M/s.
Kota Subba Rao
QUORUM:
HONBLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M.
SHREESHA, MEMBER
TUESDAY, THE TWENTY THIRD DAY OF DECEMBER TWO THOUSAND EIGHT Oral Order: (Per Honble Justice D. Appa Rao, President) ***** Unsuccessful complainant is the appellant.
The case of the complainant in brief is that he took a medi-claim policy for himself, his wife and two children from the respondent insurance company for Rs. 1, 20,000/-. His son K. Tirumalesh Kumar underwent Lasik laser surgery for his irregular astigmatism/ pathological myopia for his both eyes as per the advise of eye specialist Dr. P. L. Rao, Modern Eye Hospital & Research Centre, Nellore. Since his son has been using glasses for the last 15 years, eye specialist opined that laser surgery would cure the said deformity.
When he submitted the medi-claim papers along with bills amounting to Rs. 24,367.90 it was repudiated on the ground that it does not cover under the policy. Therefore, he claimed Rs. 24,367.90 with interest @ 24% p.a., damages at Rs.
25,000/- and costs.
The insurance company resisted the case. While admitting issuance of policy as alleged by the complainant, it alleged that the surgery underwent by K. Tirumalesh Kumar is not one of the diseases covered under the policy. It was not a disease by birth. The surgery underwent by him was cosmetic in nature, therefore his claim was repudiated.
The complainant in proof of his case filed affidavit evidence and filed Exs. A1 to A20, while the respondent insurance company filed Ex. B1 certificate issued by Dr. Mamesh a panel doctor.
The Dist. Forum after considering the evidence placed on record opined that Lasik laser surgery is a cosmetic surgery as opined by Dr. P. Mamesh under Ex. B1, and therefore was not entitled to the amount covered under the policy.
Aggrieved by the said decision, the complainant preferred this appeal contending the Dist. Forum did not appreciate the fact that his son is suffering from vision problem. On the advise of eye specialist laser surgery was conducted. It cannot be termed as cosmetic in nature, and therefore prayed that the amount covered under the policy be granted besides compensation.
It is an undisputed fact that the complainant was issued a medi-claim policy wherein the complainant, his wife and his children are entitled to reimbursement of medical treatment charges . It is also not in dispute that his son K. Tirumalesh Kumar underwent Lasik laser surgery for his irregular astigmatism for his both eyes as per the advise of eye specialist evidenced under Ex. A9, spending an amount of Rs. 24,367.90 evidenced under bills Exs. A10, A12, A14, A15. When the complainant claimed the amount, it was repudiated basing on the opinion of its panel doctor Dr. P. Mahesh. He was of the opinion that the surgery was cosmetic in nature. It was not a disease by birth.
The moot point for consideration is whether the surgery was cosmetic and whether the insurance was liable to reimburse the medical charges?
Learned counsel for the appellant relied Butterworths Medical Dictionary (2nd Edition) Page 17 for the meaning of Irregular astigmatism. It is astigmatism in which the refraction is unequal in more than two meridians and cannot be corrected by cylindrical lenses; astigmatism is a condition in which a point source of light cannot be brought to a point focus on the retina by use of spherical lenses. It is caused by unequal refraction in different meridians of the eye. At page 964, it is indicated that lasers are used in ophthalmology to treat retinal and chorodial disease.
The Tabers Cyclopedic Medical Dictionary (17th Illustrated Edition) at page 165, astigmatism is denoted as a form of ametropia in which the refraction of a ray of light is spread over a diffuse area rather than being sharply focused on the retina. Equally at page 1085, it is indicated that lasers have multiple treatment applications, in ophthalmology.
We have also refereed to Dorlands Illustrated Medical Dictionary 28th International edition by W. B. Saunders Company at page 151 wherein the very same meaning was assigned.
Unequal curvature of the refractive surfaces of the eye, hence a point source of light cannot be brought to a point focus on the retina but is spread over a more or less diffuse area. This results from the radius of curvature in one plane being longer or shorter than the radius at right angles to it. Acquired due to some disease or injury of the eye.
Unfortunately Dr. Mahesh who certified that it was a cosmetic surgery was not examined. He did not mention the basis for his opinion.
It is settled law that non-examination of Dr. P. Mahesh, more so when an expert specialist doctor Dr. P. L. Rao opined that Lasik laser surgery would cure irregular astigmatism having opined that it was not cosmetic, ought to have been examined. The Supreme Court in Rajesh Kumar Vs. Yudhvir Singh reported in 2008(4) Supreme 291 held that unless the author of the medical certificate has been examined it was not admissible in evidence.
Clause 2.2 of the policy conditions covers surgical operation which means manual or operative procedure for correction of deformities and defects, repair of injuries, diagnosis and cure of diseases, relief of suffering and prolongation of life.
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 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.
We have been observing that the insurance companies are denying the just claims of the policyholders on one ground or the other by getting an opinion to suit their needs. There is no justification in stating that the surgery is cosmetic in nature. The surveyor who was appointed ought to have examined the doctor who performed the operation, in order to find out whether the surgery was cosmetic or not. It cannot take an opinion from the panel doctor in order to repudiate the claim. This is irregular, and we may say so, unethical, and unjust. The just claims of the policyholders are being rejected making them to drive to courts for redressal of their grievances. Considering the material placed on record, we are of the opinion that the claim was just and the insurance company is liable to reimburse the amount besides payment of compensation as they have unnecessarily repudiated the claim by taking unjust defence.
In the result the appeal is allowed setting aside the order of the Dist. Forum. Consequently the complaint is allowed in part. The respondent insurance company is directed to pay Rs. 24,367.90 with interest @ 9% p.a., from the date of repudiation i.e., 16. 8. 2005 till the date of realization with costs of Rs. 2,000/-. Since the claim was repudiated without any justification, we direct the insurance company to pay compensation of Rs. 10,000/-. The complainant is also entitled to costs of Rs. 2,000/- in the appeal. Time for compliance four weeks.
PRESIDENT LADY MEMBER Dt. 23.
12. 2008