Case No.135/06
1. Sh.Deepak Bajaj
2. Ms.Ria Bajaj D/O Sh.Deepak Bajaj
Both residents of House No.H-98, Lajpat Nagar-I, New Delhi – 110024.
………Complainants
Versus
1. National Insurance Company Ltd., B-18, Community Centre, Janakpuri, New Delhi – 58.
2. M/s.Medsave HealthCare, New Delhi, F-701 A, Lado Sarai, New Delhi – 30.
……..Opposite Parties
CORAM : J.P. SHARMA : PRESIDENT
: S.M. MAZUMDAR : MEMBER
: DR. PREMLATA : MEMBER
O R D E R
J.P. SHARMA (PRESIDENT) :
Briefly stated the facts of this case are that complainant No.1 was holding Mediclaim Policy ever since 1999 for himself, his wife Smt.Rajni Bajaj, his daughter Ria Bajaj and his son Sh.Akshay Bajaj. Complainant No.1 and the aforesaid family members were insured with OP-1 during the period 25.08.2003 to 24.08.2004. According to the complainant in Feb., 2004, Ms.Ria Bajaj started having complaint of watering in her eyes, intolerance of light, headache and inability to tolerate spectacles and since the said problems were increasing day by day, Ms.Ria Bajaj got herself examined on 14.08.2004 by Eye Specialist in Shroff Eye Centre, Kailash Colony, New Delhi. According to the complainant, she was advised to undergo Lasik surgery in both her eyes as prolonging the operation may cause disablement of her vision. Accordingly, Ms.Ria Bajaj got herself admitted in Shroff Eye Centre on 23.08.2004 from where she was discharged on 24.08.2004 and during this period Lasik surgery was done for both her eyes. The treatment and medicine expenditure was to the tune of Rs.38,539.20p. Complainant No.1 though requested OP-1 for cashless facility but his request was declined on the plea that reimbursement would be considered only after the necessary surgery has been done. Complainant No.1 thereafter, submitted the claim form on 06.09.2004 through OP-2 alongwith all the necessary information and documents but the complainant’s claim was repudiated on the ground that the case is not payable as it was a Cosmetic Surgery and falls under one of the Exclusion Clauses of Insurance Policy. Aggrieved by the repudiation of their claim, complainants NO.1 and 2 have approached this Forum with the present complaint.
In their written statement, OPs. pleaded that there was no deficiency in service on their part as the claim under the mediclaim policy was “inadmissible” as the same was a ‘Cosmetic Surgery.’ It was further claimed that the claim was inadmissible as per advice given by OP-2 to OP-1 in as much as Cosmetic Surgery falls within the Exclusion Clause 4.5 of the terms and conditions of the Insurance Policy.
Parties filed affidavits in support of their rival contentions.
We have heard Sh.Jasbir Tyagi, Ld. Counsel for complainant, have gone through the entire material on record and have considered his relevant contentions. None appeared for OPs. during arguments.
As already pointed out above, the plea of OPs in their written arguments has been that the claim was inadmissible as per the opinion received from TPA M/s.Medsave HealthCare, New Delhi who declared the surgery undergone by complainant No.2 as Cosmetic Surgery. OPs. for repudiation of complainant’s claim have relied upon the Exclusion Clause 4.5 of the terms and conditions of the Insurance Policy which stipulates as under :-
“4. EXCLUSIONS
4.0 The Company shall not be liable to make any Payment under this policy in respect of any expenses whatsoever incurred by any insured Person in connection with or in respect of :
4.1 ………………………………………………….
4.2 ………………………………………………….
4.3 ………………………………………………….
4.4 …………………………………………………..
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 other than as may be necessitated due to an accident or as a part of any illness.”
We, however, do not find any merit in the submission of OPs. that complainant No.2 had undergone Cosmetic Surgery for her eyes in view of certificate dated 03.09.2004 issued by Shroff Eye Centre which reads as under :-
“This is to certify that Ms.Ria Bajaj (SEC No.K60028) is under our care. She visited at our centre on 14.08.2004 with complaints of intolerance to glasses and contact lenses due to contact lens induced giant papillary conjunctivitis & a contact dermatitis on the side of her face due to spectacle frames in both eyes. She was advised lasik surgery for hyperopia and hyperopic astigmatism in both eyes.
She underwent lasik surgery in both eyes on 23.08.2004. She was admitted on 23.08.2004 and discharged on 24.08.2004.”
Complainants in support of his plea that their claim was admissible also relied upon the Certificate issued by Shroff Eye Centre on 24.09.2004 which reads as under :
“This is in continuation of our previous certificate dated 03.09.2004 regarding Ms.Ria Bajaj (SEC No.K60028). As she cannot tolerate glasses or contact lenses and owing to her higher side of her refractive status. Her unaided visual acuity would be disabling. Hence, in order to have functional vision she was advised laser refractive surgery.”
A perusal of both these certificates issued by Shroff Eye Centre clearly establish that the surgery was undergone by Ms.Ria Bajaj as she could not tolerate the glasses or contact lenses owing to higher side of her refractive status. If she had undergone Lasik surgery to save her eye sight, such lasik surgery can by no stretch of imagination be called a Cosmetic Surgery. OPs.’ repudiation of complainant’s claim on the basis of Exclusion clause 4.5 of the terms and conditions of the insurance policy therefore, makes out a case of deficiency in service on their part.
As a result of what has been discussed above, we direct OP-1 to reimburse to complainant No.1 the expenditure incurred for complainant NO.2 for lasik surgery to the tune of Rs.38,539.20p. In addition to this amount, OP-1 shall also have to pay to the complainant a sum of Rs.7,000/- towards compensation and cost for the harassment caused to the complainant on account of deficiency in service on their part.
OP-1 shall comply with the above mentioned order within 30 days of its receipt failing which proceedings u/s 25/27 of Consumer Protection Act may be initiated against them.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge. Thereafter, the file be consigned to the Record Room.
(DR. PREMLATA) (S.M. MAZUMDAR) (J.P. SHARMA)
MEMBER MEMBER PRESIDENT
Dated : 23rd Dec.’09