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Judgment
THE petitioner/complainant preferred this Revision petition against the order of Tamil Nadu State Commission Disputes Redressal Commission, Chennai in First appeal No.60/2011 dated 24.1.2012.
FACTS in this case On 31/07/2008 the Petitioner took a policy from OP-1 under LIC ''s Health Plus with Unit Linked insurance Plan (Table No.901).As per the terms and conditions of the said policy Clause 2[ii],states as follows; " in the event of an insured undergoing any specific Surgery in a hospital due to Accidental Bodily injury or Sickness first occurring or manifesting itself after the date of cover commencement and during the cover period then, the insured is entitled to claim benefits. " The Petitioner /Complainant suffered infected dentigerous cyst of left mandible (lower law) and undergone an Oral Maxillofacial Surgery on 14.2.2009 at Soundara Pandian Bone and Joint Hospital, Chennai; wherein total hospitalization expenditure amounted to Rs.254306/- for which he has claimed the same from the 1st opposite party. The 3rd opposite party on 23.4.2009 sent a claim rejection letter stating that claim submitted after 15 days of discharge from hospital, but on 15.6.2009 the OP-3 sent a demand draft for Rs.19,000/- towards hospitalization benefits only. The OP-2 sent another letter on 17.8.2009 saying that the complainant is not eligible for major surgical benefits as the surgery does not fall under the purview of policy condition. Thereby, on 29.1.2010 Complainant filed a complaint before District Consumer Disputes Redressal Forum, Karur (In short District forum-DF) against the opposite parties claiming payment of medi-claim amount of Rs.2,34,306/- towards the settlement of surgical benefits with 18% interest and Rs.5,00,000/- as compensation. The OPs denied the above contentions and claimed that as per policy conditions the complainant is not eligible for the Major Surgical Benefits (MSB) therefore it ''s repudiated and only hospitalization benefit of Rs.19000/- was allowed. The District Forum after considering all facts allowed the complaint by directing the opposite parties 1 to 3 to pay Rs.1, 20,000/- with interest at the rate of 9% from the date of complaint and Rs.40,000/- towards compensation and Rs.2,000/- towards costs by finding deficiency of service against the opposite parties 1 to 3. The 3rd opposite party remained ex-parte before the District Forum.
THE OP 1 and 2 filed an appeal FA No. 60/2011 before State Commission alleging the District Forum allowed the complaint erroneously as the surgery charges for facial treatment was not payable as it did not fall within any of the specified surgeries which are covered under the policy.
THE State Commission after hearing the parties and on the basis of evidence allowed the appeal holding that "the complainant failed to prove that the surgery undergone by him was only because of trauma or burns and not for cosmetic purpose and thereby the opposite parties rejection of claim in this regard cannot be considered as deficiency of service. But the District Forum without going deep in to the terms and conditions of the policy, under which claim was made wrongly allowed the complainant and in our view the same should be set aside. " Hence, the present revision.
THERE is a delay of 105 days in filing this Revision Petition, for the reasons mentioned in the application for condonation of delay, we condone the delay. We heard the Learned Counsel of both sides and have gone through the evidence on record.
THE facts that OP-3, the Third Party Administrator (TPA) at first instance rejected the claim stating that complainant has filed claim form after 15 days of discharge from hospital. The OP allowed Rs.19,000/- only as a hospitalization claim after two months on repeated correspondence made by complainant. The TPA has rejected the Major Surgical Claim made by the Complainant stating that "the customer has requested for the payment of MSB saying that the surgery falls under the category of ORO MAXILLO FACIAL SURGERY; but, we got opinion from our medical team which says that the procedure has been done in the segmental resection of left side of mandible only and mandible only and mandible is not included in the facial bone and so this surgery does not come under the MSB list given ". In other words, the complainant has undergone a surgery called Oral and Maxillo facial Surgery due to infected dentigerous cyst left side of mandible was not covered under the policy terms and conditions as per Exhibit B2. The surgery undergone by the complainant was not due to trauma or burns and it was done for cosmetic purpose. Hence, the benefit for hospitalization of Rs.19,000/- alone was allowed. We analyzed facts of this case point wise also noted the intentions opposite parties i.e. Insurers and TPA while processing of the claim and nature of harassment sustained by the insured one. Points for considerations are as; i) The complainant/petitioner was suffering from a disease- Infected dentigerous cyst in left mandible for which he got operated and incurred a certain expenditure of Rs.256306/-. The conditions and privileges referred in the policy documents of Clause-2 deals with health related benefits payable subject to policy being in force. It is under the Clause 2(ii) in the same document the definition of Major Surgical Benefit is given which is as follows: " In the event of an insured under this policy undergoing any specified surgery in a hospital due to accidental bodily injury or sickness first occurring or manifesting itself after the date of cover commencement and during the cover period then, subject to the terms and conditions of the policy the benefit amount, reckoned at the percentage of the sum assured as mentioned in the surgical benefit. Annexure against the specified surgery performed shall be payable by the Corporation ". Therefore Complainant contended that he was sick due to suffering by pain from angle of left mandible to the center corresponds with central incisor and as the sickness arose during the policy in force, the claim is a bonafide claim. ii) It is surprising and ridiculous to note that OPs denied the claim without understanding certain technicalities like "Mandible is not a bone of face..!! " Exhibits A16 and B22 are the same documents. The contention available in the said document reveals that "the procedure done was a segmental resection of left mandible only. Mandible is not included in the facial bone. So this surgery does not come under the MSB list given. On this basis TPA has rejected the Major Surgical Benefit Payment. In our opinion and our knowledge of Human Anatomy the mandible is a lower jaw bone. We referred medical books Grey ''s Anatomy, Medical Jurisprudence by R.M.Jhala; Human Anatomy by B.D.Chourasia, Modi ''s Medical Jurisprudence and Toxicology in which defined clearly that the mandible is one of oro-facial part. In the case on hand the complainant undergone surgery of resection of mandible ( lower jaw). The respondents did not come forward with any documentary evidence to show that the surgery undergone by the petitioner is for cosmetic purpose. The mandible bone has not been shown as excluded portion for claiming the benefit under Major Surgical Benefits. Therefore, it appears the intentional motive and unfair tactics of OPs to delay and deny the claim. iii) Very important point for our discussion which will throw light on the words "SICKNESS " and " TRAUMA " in the present case. Both the words have different meanings in different contexts: Referring to the policy Ex P 2, the conditions and Surgical Benefit Annexure- under the heading ORO-MAXILLAFACIAL SURGERY which reads as "Major reconstructive oro-maxilla facial surgery due to trauma or burns and not for cosmetic purpose ". We need to analyse word by word the phraseology of the line supra. There is no doubt it was a major surgery and it is not reconstructive one. The diagnosis and indication for surgery was infected dentigerous cyst of left mandible. This is a disease means a sickness. Now, if we focus whether TRAUMA is the cause and progression (etio-pathogenesis) of infected dentigerous cyst ; which is the most important point of consideration to arrive conclusion in this case on hand. We referred several medical texts, literature and scientific research papers to know the weather trauma leads to "dentigerous cyst " Several studies and articles are published regarding Dentigerous Cyst due to trauma. The article titled " ''Conservative management of a dentigerous cyst secondary to primary tooth trauma. '' By Authors, Gondim JO, Neto JJ, Nogueira RL, et al; Dent Traumatol 2008 Dec; 24(6) :676-9 reads as "Trauma to the deciduous teeth may have severe consequences. Pulp necrosis is the commonly observed sequel in traumatized primary teeth and is one of the possible etiologic factors for the development of dentigerous cyst. Dentigerous Cyst is more commonly seen in mandibular third molar and maxillary canine region and is rarely associated with other teeth. "
FURTHERMORE , due to pain in cyst region is due to infection which in turn aggravates the sickness. The infection and pain are very often occur due to any intra oral (inside mouth) trauma by simple mastication, any pricking injuries, crushing of stones in mouth even the oral burns due to hot food or liquids consumption. Therefore, as per literature supra there is every possibility that intra oral TRAUMA/ BURNs lead to dentigerous cyst and which further progressed to infection. Then the complainant was operated for infected dentigerous cyst of left mandible. The Surgical Benefit Annexure listed 49 items, but most are confusing and difficult to interpret by ordinary policy holder. It needs proper detail which are legible and understandable by the policy holder. It appears that the Insurance Company and TPA may interpret MSB as per their whims and fancy which will be more beneficial to them only but not for the policy holder. The policy condition in this case on hand appears to be very vague which did not specify the word "TRAUMA ". The trauma may be recent or old or ancient one. It may be intra oral or extra oral, may be blunt. Most of the individuals did not notice or did not pay attention for such intra oral traumas. Therefore, we cannot rule out in this case that trauma to the primary teeth would have caused the development of the cyst. The trauma to the deciduous teeth should not be over looked since it results to any pathology(disease). Some types of dentigerous cyst the growth potential is apparently limited, but it can cause sufficient bone expansion to promote facial asymmetry, pain as in the present case. Many dentigerous cysts reach great dimensions before being diagnosed.
REFRREING to Clause 2(ii) and MSB annexure we in opinion that the complainant is eligible for the MSB claim benefits. As the complainant was SICK due to dentigerous cyst which be due to trauma which is one of the etiology and subsequent injuries or trauma in the oral cavity the cyst got infected; therefore the major surgery was performed which is not for cosmetic surgery purpose. Hence, as per OPs own words it is clear that the petitioner has SICKNESS as well as TRAUMA. The contention of OP is wrong that "the operation was not due to trauma or burns the claim could not be entertained ".
IN the view of above discussions we set aside the order of State Commission. The OPs have intentionally delayed the claim by wrong and on the technicality of terminologies. Therefore, non settlement of claim by which the consumer has suffered till date. Therefore, repudiation of the claim is unjustified. We feel the Complainant should be compensated properly as per terms of the policy. Repudiation of the claim itself is deficiency in service for which OPs are liable and it is necessary to impose punitive cost also. The insurance is contract of utmost good faith and the insured person takes the insurance policy by keeping faith on the company. But, his hopes and dreams shattered by the attitude of insurer when the issue of claim arises.!!. The insurance company and the TPA find several ways how to repudiate the claim even it is genuine one and harass the claimant and make him to run from pillar to post. It is just unfair and unacceptable. The Consumer Protection Act is social legislation; there is need to strike down such practices and need to give proper redressal to the consumers . In fact ,the insurance companies should be magnanimous enough generous to award the claims at single window , without any hassle and with full co-operation.
THEREFORE , in view of foregoing observations and discussions, this revision petition is allowed and proceeds to pass the following ORDER: The Opposite parties 1 to 3 are directed to pay 60% of sum assured i.e.Rs.1,20,000/- with interest at the rate of 9% from the date of Complaint and Rs.50,000/- towards compensation for deficiency of service and we impose Rs. 30,000/-as punitive costs upon the respondents for wasting the precious time of this commission and fora below, out of which Rs. 10,000/- will go to the complainants and Rs. 20,000/- be deposited with Consumer Welfare Fund by way of demand draft in favor of "Pay and Accounts Officer, Ministry of Consumer Affairs ", payable at Delhi, Learned Registrar of this Commission shall see compliance of the order under Section 25 of the Consumer Protection Act, 1986. This order should be complied within a period of 45 days from today otherwise it will carry interest at the rate of 9% p.a. till its recovery.