S.A. SiddiquiMember(Judicial):
1) This appeal has been filed by complainant appellant under section 15 of Consumer Protection Act, 1986 (Hereinafter called Act) against order dated 02.07.2010 passed by Ld. DCDRF (East) Saini Enclave, New Delhi, in complaint case No.613/09 Umesh Narang Vs. LIC of India.
2) Brief facts giving rise to the filing of this appeal are noted below:
i) Complainant appellant secured œLIC Jeevan Asha II Policy? No.121989082 dated 20.03.2003. The sum assured under the policy was Rs.3/- Lacs which cover major/minor surgical procedures. The complainant paid insurance premium regularly.
ii) The complainant/appellant underwent a major surgery/ procedure for cardio-vascular system in Fortis Hospital and remained admitted there from 28.02.2008 to 05.03.2008. He incurred an expenditure of Rs.7,55,995/- for ICD implantation. After discharge from the hospital, the complainant appellant filed medical claim alongwith all necessary documents but the OP LIC repudiated the claim without assigning valid reasons. The complainant appellant made representations explaining to the OP that insertion of heart pacemaker and ICD implantation were one and the same, both perform exactly the same function. OP did not respond, the complainant sent legal demand notice which was duly served upon the OP. But they failed to make payment. The complainant was therefore, compelled to file the consumer complaint before the Ld. DCDRF (East), Saini Enclave, Delhi seeking direction for payment of Rs.3/- lacs alongwith interest, compensation and the cost of litigation.
3) Notice was issued to OP who filed written statement refuting the allegation of complainant. It was admitted that complainant/appellant had obtained œLIC Jeevan Asha II Policy? but the benefits were restricted to the conditions mentioned in the policy bond. The claim had to be regretted as the claim did not qualify the conditions of the policy for payment. It was maintained that the policy bonds provides for allowing the claim in case of initial insertion of permanent pace maker for the heart under the major surgical procedure for cardio-vascular system. But the claim was lodged for ICD implantation and not for pacemaker implantation. Hence, claim could not be allowed and the same was rejected by Divisional Medical Referee.
4) The parties led evidence in support of their cases. On consideration of facts, circumstances and evidence on record, the Ld. DCDRF was not convinced that it was a case of deficiency of service on the part of OP the Insurance Company and therefore dismissed the complaint. The complainant felt aggrieved and preferred this appeal inter-alia on the ground that appellant underwent a major surgical procedure of ICD implantation and incurred an expenditure of Rs.7,55,995/- and sent his claim for re-imbursement of the amount spent in hospitalization and treatment. But the same was repudiated on the flimsy ground that claim preferred by the appellant was not covered under the policy without properly explaining the reasons behind his reversal of the claim. It is note worthy that the insurance policy provides for allowing the claim in case of initial insertion of permanent pacemaker for the heart under the head Major Surgical Procedures for Cardio-vascular system. There is no difference between the surgical procedure undertaken for implantation of permanent pacemaker and the implantation of the ICD which is also a small light weight electronic device like pacemaker, which is permanently placed in the chest under the skin. Both the devices monitor heart rhythm and send electric signals to maintain proper heart beat and therefore, there was no difference between two devices and the rejection of the claim by the OP was illegal and unjust which he amounts to deficiency of service on the part of the LIC.
5) The OP/respondent (LIC) filed reply, it was alleged that the complainant was informed about the rejection of the claim through letter dated 3.7.2008 stating clearly therein that ICD implantation is not covered under the clause 11 (B) of the policy conditions. The policy conditions provides for allowing the claim in case of initial insertion of permanent pacemaker for the heart in the major surgical procedure for cardiovascular system but the claim was for ICD implantation but not for pacemaker. Since the ICD implantation surgery was not covered under the policy the claim was regretted by Divisional Medical Refree of the OP respondent.
6) We have heard Shri Parveen Mahajan/Shri Rohit Sharma, counsels for appellant and Shri Ashish Verma, counsel for respondent. It is important to note that during the course of hearing of appeal, counsel for appellant had obtained leave of the court to file medical literature explaining the evidences of the ICD and the pacemaker for better appreciation of the issue before the court. Ld. Counsel for OP respondent had no objection. The counsel for appellant, therefore, filed a letter dated 20.9.2013 by Dr. Rajneesh Sardana, MD DM, Sr. Consultant Cardiology and Electrophysiology, Inderprastha Apolo Hospital, Sarita Vihar, New Delhi, under the head œTo Whom it May Concern?. In this letter the main function of the two devices has been explained. Ld. Counsel for the appellant argued that the complainant appellant was admitted in Fortis Hospital from 28.02.2008 to 05.03.2008. In this period he underwent a major surgery procedure for cardiovascular system and incurred an expenditure of Rs.7,55,995/- for ICD implantation. ICD (Implantable Cardioverter Defibrillator) is a device which has both, a pacemaker in it and along with capacity to automatically detect ventricular arrhythmia and deliver shock to save life. Exactly the same was the function of the pacemaker. ICD is the latest and improved version of pacemaker. Therefore, the rejection of the claim of the complainant appellant was not only inappropriate and illegal but was indicative of the fact that when it comes for payment of claim the insurance company tries to read between the lines to reject the claim on flimsiest ground. They try to find out an escape route. On the other hand counsel for the OP respondent argued that a contract of insurance was a contract of uberrimae Fidei (i.e. utmost good faith) and both the parties are bound by the terms and conditions of the contract. They emphasized that under condition 11(b) benefit (II) of the special provisions of the policy schedule shall be available on the life assured under going any one of the following surgical procedures:
(a) Major Surgical Proceduresof Cardio-Vascular System for initial insertion of permanent pacemaker for the heart.
(b) Minor Surgical Procedure
7) Obviously, the claim of the complainant appellant was not permissible under the terms and conditions of the policy as he has not gone through major surgical procedure and cardiovascular system for insertion of permanent pacemaker for the heart but for implantation of ICD. Therefore, the claim was rightly rejected and there was no deficiency on the part of LIC. He further argued that the terms and conditions of the insurance policy as laid down in IND Swift Ltd. Vs. New Delhi Insurance Co. Ltd. IV (2012-CPJ 148 NC), are to be construed strictly which is a binding contact between the parties and nothing can be added or subtracted by giving different meaning to the words mentioned therein. He also relied upon two more rulings :
1. India Vs. Habdul Slim on (2012) CPJ 31 NC.
2. LIC of India Vs. Shree Niwas Bansal (2013) CPJ 493 NC.
8) Undoubtedly, the policy conditions provide that 11 (b) benefit (2) of the special provision of the policy schedule shall be available on the life assured if he undergoes a major surgical procedure of cardiovascular system for insertion of permanent pacemaker for the heart. In the present case under the aforesaid surgical procedure ICD Device was implanted instead of pacemaker. Now, the question arises whether both the devices i.e. pacemaker and ICD are one and same things or different, if the functions of both the devices are the same and only a nomenclature is different then in our considered view the claim of the complainant must be covered under the terms and conditions of the insurance policy i.e. 11(b). Accordingly to Dr. Rajneesh Sardana, MDDM (Cardiology) of Inderprastha Apolo Hospital, ICD is a device which has both a pacemaker in it and alongwith capacity to automatically detect ventricular arrhythmia and deliver shock to save life. Thus, it is an improved and latest version of pacemaker. Like pacemaker ICD is also a small, light weight electronic device permanently placed under skin of the chest to monitor heart rhythm and send out electronic signals to stabilize the heart beat. Both perform the same function of monitoring heart rhythm and to send electric signals/impulses to normalize or stabilize the heart beat. Therefore, we come to the conclusion that rejection of the claim of the complainant by the OP on the ground that the terms and conditions of the policy bond provided for the implantation of pacemaker device only amounts to deficiency of service. In the present case the same device was implanted which was technically an improved version of pacemaker. Simply because there was difference in nomenclature, claim was rejected ignoring the crucial function of stabilization of heart beat by both the devices. Both were life saving devices.
9) So far as the interpretation of the words of the terms and conditions of the insurance policy was concerned; law laid down by Honble National Commission in IND Swift Ltd., case was universally applicable. There was no question of addition or subtraction of anything by giving different meaning to the words used.
10) In view of the above discussion the impugned order dated 2.7.2010 passed by the Ld. DCDRF is erroneous and can not be sustained under law and is liable to be set aside. Rejection of the rightful claim of the complainant by the OP respondent was definitely deficiency of service and as it was legally bound to allow the insurance claim.
11) Accordingly, the appeal is allowed. The impugned order dated 2.7.2010 passed by Ld. DCDRF (East), Saini Enclave, Delhi -92 and in complaint case No.613/09 is set aside and the complaint stand decreed. We, therefore, pass the following order :
œOP-respondent LIC is directed to pay a sum of Rs.3/-lacs towards insurance claim alongwith interest from the date of filing of the petition till the date of actual payment @9% per annum. The OP respondent is further directed to pay a sum of Rs.50,000/- towards compensation for mental pain, agony and harassment. The OP appellant is further directed to pay a sum of Rs.20,000/- towards cost of litigation. The payment shall be made within a period of 30 days from the date of knowledge of the judgment following which the complainant appellant shall be at liberty to invoke the provisions of Section 27/25 of the Act.?
12) Let a copy of the judgment be provided to the parties free of cost. Thereafter file be consigned to record room.