C.

No140/2012

BEFORE THE SOUTH MUMBAI DISTRICT CONSUMER

DISPUTES REDRESSAL FORUM,
Puravatha Bhavan, 1st Floor, General Nagesh Marg, Near Mahatma Gandhi Hospital,
Opposite M.D. College, Parel, Mumbai – 400 012.
O.No.
Complaint No.SMF/MUM/140/2012 Date of filing : 18/07/2012
Date of Order : 03/02/2015

Mr. Dinesh Jayntibhai Mehta,

R/at – C-G-7, Walchand Complex CHS Ltd.,
90 Feet Road, Bhayandar (West),
Dist. Thane – 401 101. … Complainant.
V/s.
1. The Oriental Insurance Co. Ltd.,
Mumbai City Div. Office -6,
Magnet House, Ground Floor,
Narottam Morarji Marg,
Ballard Estate, Mumbai.
2. Raksha TPA Pvt. Ltd.
Regional Office at – 7,
Kimtha Street, Ballard Estate,
Mumbai.
… Opposite Party Nos.1 & 2.
Coram :
Shri.S.M. Ratnakar : Hon’ble President
Shri.S.G. Chabukswar : Hon’ble Member

Appearance : Smt. Mrunalini Warunjikar, Ld.Advocate for the Complainant.

Smt. Sapna Bhuptany, Ld.Advocate for the Opposite Party.

ORDER

PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT

1) By this complaint the Complainant has prayed that the Opposite Parties be
directed to pay Rs.2,50,000/- with interest @ 15% p.a. from such period as this Forum
may deem it fit and proper towards the reimbursement of medical expenditure
incurred by the Complainant. It is also prayed that the Opposite Parties be directed to
pay compensation of Rs.50,000/- and cost of Rs.25,000/- towards this complaint.

2) According to the Complainant, he has insured the family members including

himself, his wife and two sons since the year 2000. The copies of the premium
receipts are marked as Exh.‘A’ colly. The Opposite Party No.2 is the Agent of
1
 C.No140/2012
Opposite Party No.1 so far as the settlements of the claims are concerned. According
to the Complainant, during the period 03/01/2011 to 02/01/2012 he was insured with
Opposite Party No.1. The policy document is marked as Exh.‘B’. It is alleged that in
the month of April, 2011 the Complainant was required to take medical treatment at
Kokilaben Dhirubhai Ambani Hospital as well as Prince Ali Khan Hospital. The
copies of medical treatment papers and receipts of expenses incurred by the
Complainant are marked as Exh.‘C’ colly. It is submitted that the Complainant was
required to pay Rs.2,91,838/- inclusive of pre and post hospital expenses. The chart of
actual expenses incurred by the Complainant is placed on record at Exh.‘D’. It is the
case of the Complainant that the Complainant had submitted claim application on
13/05/2011 to the Opposite Party No.2. The copy of the same is marked as Exh.‘E’.
The Complainant was admitted in the hospital on 26/04/2011 and was discharged on
01/05/2011. The Complainant had forwarded the necessary documents to the Opposite
Party No.1. It is alleged that on 18/06/2011, the Opposite Party No.2 by it’s letter
informed the Complainant that his claim is not tenable for the reasons stated in the
said repudiation letter. Copy of the said repudiation letter is marked as Exh.‘F’. It is
submitted that the Complainant thereafter requested to return all the original
documents which were submitted by the Complainant to the Opposite Party No.2.
The copy of the said letter dtd.04/08/2011 is marked as Exh.‘G’. It is alleged that the
Opposite Party No.2 accordingly returned the original documents to the Complainant.

3) The Complainant has alleged that he then approached the doctors to find out as
to whether the Complainant was having any medical problem as per policy condition
no.4.8 under which the claim of the Complainant was repudiated. It is alleged that the
Prince Ali Khan Hospital gave a certificate on 22/08/2011 stating that the Cancer
which had developed to the Complainant can be caused due to other causes also
besides tobacco chewing. Copy of the said certificate dtd.22/08/2011 is marked as
Exh.‘H’. The Complainant thereafter, alongwith all other medical papers and
certificate again requested the Opposite Party No.1 to reconsider his claim. The copy
of the said representation dtd.04/10/2011 is marked as Exh.‘I’. It is submitted that
however, there was no reply to the Complainant. The Complainant therefore, by letter
dtd.24/12/2011 again requested the Opposite Party No.1 for sanctioning his claim.
The copy of the said letter is marked as Exh.‘K’. The Opposite Parties then by letter
dtd.23/11/2012 again repudiated the claim under clause 4.8 of the policy. The
2
 C.No140/2012
Complainant has thus, submitted that the Complainant’s claim was unnecessarily
repudiated by the Opposite Parties which amounts to deficiency in service and unfair
trade practice. It is therefore, prayed that the reliefs as claimed in para 1 of this order
may be granted in his favour.

4) The Opposite Parties contested the complaint by filing their written statement.
It is contended that the present complaint involves complicated question of law and
the same cannot be decided in the summary jurisdiction of Consumer Courts. The
Complainant is required to approach Civil Court. It is contended that the Opposite
Parties had given due consideration on the claim lodged by the Complainant. It is
contended that the Complainant was hospitalized in Prince Ali Khan Hospital for the
complaints of C.A. Right Buccal Mucosa. From the hospital papers and investigation
it was revealed that the Complainant was in the habit of tobacco chewing since 15-20
years which clearly conveys that the Complainant was indulging in oral vices which
falls in the exclusion clause of the policy i.e. 4.8. It is contended that the present
complaint is without merits and the same deserves to be dismissed with cost. The
Opposite Parties denied parawise allegations made by the Complainant in the
complaint. It is contended that the Opposite Parties are not aware and do not admit
that the Complainant had to pay an amount of Rs.2,91,838/- for pre and post operative
hospital expenses. It is contended that at the time of inception of policy the
Complainant did not disclose that he was a habitual tobacco chewing but when he was
giving health history to the hospital he choose to be honest to the doctor recording his
statement that he has been chewing tobacco since past 15-20 years which is prior to
the inception of the first policy. It is submitted that the Complainant has approached
this Forum without establishing that the Opposite Parties have committed any
deficiency in service in relation to the Complainant’s claim. It is contended that the
Opposite Parties had given due consideration and it was only after a conscious
application of mind the claim of the Complainant was repudiated. It is the case of the
Opposite Parties that the Complainant has not produced on record any evidence to
suggest that tobacco chewing does not cause Cancer. It is contended that this Forum
has no jurisdiction to try and entertain the present complaint. The Opposite Parties
denied the claims made against them in the prayer clause of the complaint. It is
submitted that the complaint be dismissed with cost.

3
 C.No140/2012
5) The Complainant has filed his affidavit of evidence. The Opposite Parties have
filed affidavit of evidence of Shri. R.N. Korgaonkar, Assistant Manager. Both the
parties submitted their written arguments. We heard Smt. Mrunalini Warunjikar,
Ld.Advocate for the Complainant and Smt. Sapna Bhuptany, Ld.Advocate for the
Opposite Parties. We have perused the documents filed by both parties in this
complaint.

6) The Ld.Advocate Smt. Warunjikar while submitting oral argument has relied
the literature/information gathered by the Complainant from internet is specially from
website by the name http://www.ispub.com/journal/the internet-journal-of-dental-
science/volume-I-number-2/oral-cancer-at-a-glance.html. She also pointed out the
affidavit of Dr. Sultan A. Pradhan, Surgical Oncologists of Prince Ali Khan Hospital,
Mazgoan Mumbai – 10, and the certificate issued by him in respect of the disease
suffered by the Complainant. She made submission that in view of the information
given in the above internet website as well as the certificate issued by Dr. Pradhan, the
repudiation informed by the Opposite Parties is totally wrong and it amounts to
deficiency of service on the part of the Opposite Parties. Smt. Warunjikar, Advocate
relied the following order/judgments –
Sr.No. First Appeal No. Name of Parties Date of Order
1. 1222/2007 New India Assurance Co. Ltd. 10/07/2009
V/s. Dr. AnilKumar H.Mathia
2. 415/2011 Mr. Suresh C. Jani V/s/ 24/11/2011
National Insurance Co. Ltd.
3. 923/2009 National Insurance Co. Ltd. 16/04/2010
V/s. Smt. Anuradha Dalvi
4. 1133/2010 Oriental Insurance Co.Ltd. 13/12/2006
V/s. Shri. Kiran Sehgal.
5. 1531/2012 New India Assurance Co. Ltd. 09/06/2014
V/s. Kuljinder Kaur.

(First three decisions are of Maharashtra Disputes Redressal Commission,

Mumbai and decision at Sr.No.4 is of State Consumer Disputes Redressal
Commission, Delhi and fifth decision is of State Consumer Dispute Redressal
Commission, Punjab-Chandigarh.)

4
 C.No140/2012
Smt. Warunjikar, Advocate relying upon the aforesaid decisions submitted that
the claim made in the complaint may be allowed against the Opposite Parties as the
exclusion clause under which the Opposite Parties have repudiated the claim is not
anyway attracted in this case.

7) Smt. Sapna Bhuptany, Ld.Advocate for the Opposite Parties on the other hand
submitted that the hospital papers show that the Complainant was in habit of chewing
of tobacco for last 15-20 years and due to that he was suffering from Cancer and was
required to be operated, if considered the repudiation communicated by the Opposite
Parties under clause 4.8 of the policy is justified. She submitted that the Opposite
Parties have rightly rejected the claim. Smt. Bhuptany, Advocate relied the judgments
and orders 1) First Appeal No.1067/2012 in the case of Oriental Insurance Co. Ltd.
V/s. Prakashji Karhade, decided on 10/12/2013. 2) First Appeal No.378/2011 in the
case of Pradeep Damodar Sonawane V/s. Oriental Insurance Co. Ltd., decided on
10/05/2013. 3) RBT/FA/423/2011, Oriental Insurance Co. Ltd. V/s. Pradeep D.
Jadhav, decided on 01/09/2014 by the Consumer Disputes Redressal Commission,
Maharashtra, Mumbai and Supreme Court decision in the case of Vikram Greentech
(I) Ltd. V/s. New India Assurance Co. Ltd., reported in II (2009) CPJ 34 (SC). Smt.
Bhuptany, Advocate for the Opposite Parties made submission that as the Opposite
Parties by applying its mind to the claim lodged by the Complainant has rightly
repudiated the claim and therefore, the complaint is liable to be dismissed.

8) The objection raised as regarding jurisdiction of this Forum is totally irrelevant

and improper. The Complainant had obtained insurance policy of Opposite Party No.1
and it was inforce during the relevant period when the Complainant had taken the
treatment is not at all disputed. By producing the policy documents the Complainant
was/is consumer of Opposite Parties is also established. We find that no complicated
questions are involved in this complaint and the same can be tried by this Forum in
it’s summary jurisdiction. The objection as regards jurisdiction of this Forum in our
view is therefore devoid of merits.

9) While considering the claim made in this complaint and the clause shown for
repudiation of the said claim i.e. exclusion clause no.4.8 needs to be considered which
is as under –

5
 C.No140/2012

“Convalescence, General Debility run down conditions or

rest cure, congenital external diseases of defects or anomalies
sterility any fertility sub-fertility or assisted conceptions procedure
venereal diseases intentional self injury suicide all psychiatric and
physchomatice disorders and diseases/accident due to and or use
misuse or abuse of drugs/alcohol or use of intoxicating substances
or such abuse or addiction etc.”

If we consider the above exclusion clause in our view the same cannot be
applicable for repudiating the claim made by the Complainant. As per Oxford
Dictionary Intoxicate or Intoxicated means Alcoholic Drink or Drug. The Opposite
Parties have not brought on record that the Complainant was having habit of
consumption of any alcoholic substance or was habitual drugs abuser when he
obtained the policy from the Opposite Parties. In our view only mentioning in the
case paper or medical hospital papers habit of tobacco chewing – 15-20 years, now
stopped and on the basis of it the rejection of claim by the Opposite Parties is totally
improper and wrong. The Complainant has placed on record the copy of the certificate
issued by Dr. Sultan A. Pradhan, Surgical Oncologist of Prince Ali Khan Hospital,
Mazgaon, Mumbai, who in his affidavit has specifically stated that he had operated
the Complainant for Carcinoma Right Gingivo Buccal Salcus and has explained that
the cause of Cancer may not be one and only cause Tobacco. The said doctor has
further stated that there may be other causes for development of Cancer such as,
alcohols, syphills, Orodental factors, diet and deficiency states, candica, viruses
sunlight, genetics, growth factor. The perfect solid and sole cause cannot be found for
the cause of cancer to any patient. Considering the aforesaid statement made on oath
by a Sr. Doctor having degrees as MSFRCS, FACSCPS, we find that the repudiation
made by the Opposite Parties and the same was not reconsidered even on submitting
the certificate issued by the aforesaid doctor is totally wrong on the part of the
Opposite Parties. Furthermore, the explanation given by the Dr. Pradhan is also
supported by the information placed on record from the website as submitted in the
written argument by the Complainant’s advocate which is placed on record at page
112 – 116 with the complaint. The Hon’ble State Commission in First Appeal
No.1226/2007 (Cited Supra) in the similar type of case has held that –
6
 C.No140/2012
“According to Appellant, long standing habit of chewing
tobacco and ghutka bound to leave to oral cancer and thus, it would
fall within the description of “Intentional self-injury” and, therefore,
covered under the exclusion clause 4.8 supra. We are unable to
agree with the submissions in absence of any evidence on record.
Many people chew tobacco and ghutka, but that does not necessarily
will lead to oral cancer. Tobacco chewing is also advertised as
injuries to health. But that does not mean that it is the cause and
only cause for alignment suffered by the Complainant. It also
cannot be stated that he had suppressed any information regarding
his alignment for which he was hospitalized, when the mediclaim
insurance policy was taken. Under the circumstances, rejection/
repudiation of the mediclaim of the Complainant was improper and
appellant/OP No.1 Insurance Co. measurably failed to justify their
such repudiation/rejection. Forum below rightly held so.
Accordingly we find no reason to take a different view. Thus, we
find appeal devoid of any substance on merits also.”

Considering the aforesaid observations we find that the rejection of claim in

view of the exclusion clause no.4.8 of the policy is not at all justified on the part of
the Opposite Parties. Furthermore, in the policy premium receipts below the name of
the Complainant in the column particulars of the persons covered there is mention that
“Pre-existing diseases”. The objection therefore, raised by the Opposite Parties that at
the time of the inception of policy the Complainant did not disclose that he was a
habitual tobacco chewer also cannot be accepted. The Opposite Parties did not
produce the proposal form at the time of inception of the first policy to prove the
suppression of the material facts by the Complainant. We therefore, hold that in view
of the aforesaid discussion and the observations of the Hon’ble State Commission,
Maharashtra, Mumbai as referred above in identical case, the Complainant is entitled
for an amount of Rs.2,50,000/- i.e. sum assured by the Opposite Party No.1 under the
policy. The other cases relied by the Complainant’s advocate as well as by the
advocate for the Opposite Parties (cited supra) in our view are not directly on the
point involved in this case and the same cannot be said applicable to the fact of this
case. We thus, hold that the Complainant is entitle to the amount of Rs.2,50,000/-
7
 C.No140/2012
towards the medical reimbursement against the expenditure incurred by him to the
tune of Rs.2,91,838/- as shown in Exh.‘D’ to the complaint. The Complainant is
entitle to interest on amount of Rs.2,50,000/- @ 9% p.a. from the date of this
complaint till it’s realization. The Complainant is also entitle to Rs.10,000/- as
compensation for the mental harassment caused by the Opposite Parties by following
unfair trade practice while rejecting the claim lodged by the Complainant regarding
his treatment and cost of Rs.5,000/- towards this complaint. In the result the
following order is pass -

ORDER

i. Complaint No.140/2012 is partly allowed against Opposite Parties.

ii. Opposite Parties are directed to pay Rs.2,50,000/- (Rs. Two Lacs Fifty
Thousand Only) with interest 9% p.a. from 18/07/2012 i.e. the date of
filing of complaint till it’s realization.

iii. The Opposite Parties are directed to pay Rs.10,000/- (Rs. Ten
Thousand Only) to the Complainant for causing mental harassment by
rejecting the claim lodged for his medical treatment and cost of
Rs.5,000/- (Rs. Five Thousand Only) towards this complaint.

iv. The Opposite Parties are directed to comply with the above order
within one month from the date of service of this order.

v. Certified copies of this order be furnished to the parties.

Sd/- Sd/-
(Shri. S.G. Chabukswar) (Shri.S.M. Ratnakar)
Hon’ble Member Hon’ble President

sr/aj